<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1997
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
WORLDCOM, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 4813 58-1521612
(State or other jurisdiction (Primary Standard (I.R.S. Employer
or incorporation of Industrial Classification Identification Number)
organization) Code Number)
515 EAST AMITE STREET
JACKSON, MISSISSIPPI 39201-2702
(601) 360-8600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
BERNARD J. EBBERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WORLDCOM, INC.
515 EAST AMITE STREET
JACKSON, MISSISSIPPI 39201-2702
(601) 360-8600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
COPIES TO:
P. BRUCE BORGHARDT, ESQ. MICHAEL MORGAN, ESQ.
GENERAL COUNSEL - CORPORATE DEVELOPMENT R. RANDALL WANG, ESQ.
WORLDCOM, INC. BRYAN CAVE LLP
10777 SUNSET OFFICE DRIVE, SUITE 330 211 NORTH BROADWAY, SUITE 3600
ST. LOUIS, MO 63127 ST. LOUIS, MO 63102
(314) 909-4100 (314) 259-2000
--------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on the form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C>
- --------------------------------------------------------------------------
Debt Securities $3,000,000,000 $909,091
==========================================================================
</TABLE>
(1) The proposed maximum aggregate offering price has been estimated solely
for the purpose of calculating the registration fee pursuant to Rule
457(o).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
***************************************************************************
* *
* Information contained herein is subject to completion or amendment. *
* A registration statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may *
* not be sold nor may offers to buy be accepted prior to the time the *
* registration statement becomes effective. This prospectus shall not *
* constitute an offer to sell or the solicitation of an offer to buy *
* nor shall there be any sale of these securities in any state in which *
* such offer, solicitation or sale would be unlawful prior to *
* registration or qualification under the securities laws of any such *
* state. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED JANUARY 31, 1997
PROSPECTUS [LOGO]
WORLDCOM, INC.
DEBT SECURITIES
WorldCom, Inc. (the "Company" or "WorldCom") may offer from time to time,
in one or more series, debentures, notes, bonds, or other obligations ("Debt
Securities"), which may be senior ("Senior Securities") or subordinated
("Subordinated Securities") to other indebtedness of the Company, all having an
aggregate initial public offering price not to exceed $3,000,000,000 or the
equivalent thereof in one or more foreign currencies, foreign currency units,
or composite currencies, including European Currency Units. The Debt
Securities may be offered separately or as units with other securities, in
separate series in amounts, at prices, and on terms to be determined at or
prior to the time of sale. The Debt Securities will be direct unsecured
obligations of the Company.
The specific terms of the Debt Securities with respect to which this
Prospectus is being delivered will be set forth in a supplement to this
Prospectus (a "Prospectus Supplement"), together with the terms of the offering
and sale of the Debt Securities and the initial offering price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
include, among other things, the specific designation, aggregate principal
amount, ranking, authorized denomination, maturity, rate or method of
calculation of interest and dates for payment thereof, any index or formula for
determining the amount of any principal, premium, or interest payment, any
exchange, redemption, prepayment, or sinking fund provisions, the currency or
currency unit in which principal, premium, or interest is payable, whether the
securities are issuable in registered form or in the form of global securities,
and the designation of the trustee acting under the applicable indenture. The
Prospectus Supplement will also contain information, where applicable, about
material United States federal income tax considerations relating to, and any
listings on a securities exchange of, the Debt Securities covered by such
Prospectus Supplement.
The Company may sell the Debt Securities directly to purchasers, through
agents designated from time to time, or through underwriters or dealers on
terms determined by market conditions at the time of sale. If any agents,
underwriters, or dealers are involved in the sale of the Debt Securities, the
names of such agents, underwriters, or dealers and any applicable commissions
or discounts and the net proceeds to the Company from such sale will be set
forth in the applicable Prospectus Supplement.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF DEBT SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
The date of this Prospectus is , 1997.
<PAGE> 3
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, OR ANY UNDERWRITER,
AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCE, CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND ANY RELATED PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, Suite 1300,
New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Branch of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. The Commission maintains an
Internet Web site (http://www.sec.gov) that contains reports, proxy statements
and other materials filed electronically through the Commission's Electronic
Data Gathering, Analysis and Retrieval (EDGAR) system. In addition, material
filed by the Company can be inspected at the offices of the National
Association of Securities Dealers, Inc. (the "NASD"), at 1735 K Street, N.W.,
Washington, DC 20006.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Debt Securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. Any statements
contained in this Prospectus and accompanying Prospectus Supplement as to the
contents of any contract or other document are not necessarily complete, and in
each instance reference is made to the copy of such contract or other document
filed or incorporated by reference as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference and the
exhibits and the schedules thereto. For further information pertaining to the
Company or the Debt Securities offered hereby, reference is made to the
Registration Statement and such exhibits and schedules thereto, which may be
inspected without charge at, and copies thereof may be obtained at prescribed
rates from, the Public Reference Branch of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549.
"WorldCom" is a service mark of the Company.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company (formerly
Resurgens Communications Group, Inc. ("Resurgens")) under File No. 0-11258
(formerly File No. 1-10415) pursuant to the Exchange Act are incorporated
herein by reference and shall be deemed to be a part hereof:
(1) WorldCom's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (the "1995 Form 10-K");
(2) WorldCom's Report by Issuer of Securities Quoted on NASDAQ on Form
10-C dated July 12, 1996;
(3) WorldCom's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996, June 30, 1996
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<PAGE> 4
and September 30, 1996;
(4) WorldCom's Current Reports on Form 8-K dated August 25, 1996 (filed
August 26, 1996) (as amended on Forms 8-K/A filed August 30, 1996, November 4,
1996 and November 20, 1996) and dated December 31, 1996 (filed January 15,
1997);
(5) audited financial statements as of December 31, 1994 and 1993 and for
the years then ended of the network services operations of Williams
Telecommunications Group, Inc. ("WilTel"), including WilTel, Inc., WilTel
Undersea Cable, Inc. and WilTel International Inc., which were wholly owned
subsidiaries of WilTel (collectively "WilTel Network Services"), included in
WorldCom's Current Report on Form 8-K/A dated August 22, 1994 (filed April 19,
1995);
(6) audited financial statements as of December 31, 1995 and 1994 and for
each of the three years in the period ended December 31, 1995 of MFS
Communications Company, Inc. ("MFS") included in WorldCom's Current Report on
Form 8-K/A dated August 25, 1996 (filed November 4, 1996); and
(7) audited financial statements as of December 31, 1995 and 1994 and for
each of the three years in the period ended December 31, 1995 of UUNET
Technologies, Inc. ("UUNET"), a wholly owned subsidiary of MFS, included in
WorldCom's Current Report on Form 8-K/A dated August 25, 1996 (filed November
4, 1996).
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this
Prospectus and prior to the termination of the offering of the Debt Securities
offered hereby shall be deemed to be incorporated by reference herein and to be
a part hereof from the date of filing of such documents. See "Available
Information." Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein or in any Prospectus Supplement
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
References in this Prospectus to the "Company" include reference to
WorldCom and/or its direct and indirect subsidiaries.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH, AS INDICATED ABOVE. THE COMPANY WILL
PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF THIS PROSPECTUS HAS
BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR
ALL OF THE DOCUMENTS REFERRED TO BELOW WHICH ARE INCORPORATED HEREIN BY
REFERENCE (OTHER THAN EXHIBITS TO SUCH DOCUMENTS UNLESS THEY ARE SPECIFICALLY
INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO STEPHANIE Q. SCOTT, DIRECTOR OF FINANCIAL REPORTING,
WORLDCOM, INC., 515 EAST AMITE STREET, JACKSON, MISSISSIPPI 39201-2702;
TELEPHONE NUMBER (601) 360-8600.
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<PAGE> 5
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in the section entitled "The Company," and
certain statements incorporated by reference from documents filed with the
Commission by the Company, are or may constitute forward-looking statements (as
such term is defined in the Private Securities Litigation Reform Act of 1995).
Because such statements are subject to risks and uncertainties, actual results
may differ materially from those expressed or implied by such forward-looking
statements.
THE COMPANY
WorldCom, a Georgia corporation, is one of the four largest long distance
telecommunications companies in the United States, based on 1995 revenues.
Based on Federal Communications Commission ("FCC") statistics as of December
31, 1995 (the most recent statistics available), WorldCom's share of total toll
service revenues for 1995 was 4.3%.
On December 31, 1996, WorldCom acquired MFS, pursuant to the merger (the
"Merger") of HIJ Corp., a wholly owned-subsidiary of WorldCom, with and into
MFS. Upon consummation of the Merger, MFS became a wholly-owned subsidiary of
WorldCom. The Merger was effected pursuant to an Amended and Restated
Agreement and Plan of Merger dated as of August 25, 1996 by and among WorldCom,
MFS and HIJ Corp.
As a result of the Merger, each share of MFS common stock was converted
into the right to receive 2.1 shares of WorldCom common stock or approximately
411,000,000 WorldCom common shares. Each share of MFS Series A 8% Cumulative
Convertible Preferred Stock was converted into the right to receive one share
of Series A 8% Cumulative Convertible Preferred Stock of WorldCom or 94,992
WorldCom Series A preferred shares. Each share of MFS Series B Convertible
Preferred Stock was converted into the right to receive one share of Series B
Convertible Preferred Stock of WorldCom or approximately 12,700,000 WorldCom
Series B preferred shares. In addition, each depositary share representing
1/100th of a share of MFS Series A Preferred Stock was exchanged for a
depositary share representing 1/100th of a share of WorldCom Series A Preferred
Stock.
Upon effectiveness of the Merger, the then outstanding and unexercised
options and warrants exercisable for shares of MFS common stock were converted
into options and warrants, respectively, exercisable for shares of WorldCom
common stock having substantially the same terms and conditions as the MFS
options and warrants, except that (i) the exercise price and the number of
shares issuable upon exercise were divided and multiplied, respectively, by 2.1
and (ii) the holders of each then outstanding and unexercised MFS option which
was an "outperformance option" under the MFS 1993 Stock Plan instead received
the value of such option in accordance with the terms of such plan.
WorldCom's emphasis on acquisitions has taken WorldCom from a small
regional long distance carrier to one of the largest long distance
telecommunications companies in the industry, serving customers domestically
and internationally. The Merger has positioned WorldCom as one of the first
major facilities-based companies able to provide businesses with high quality
local, long distance, Internet and international communications services. With
service to points throughout the nation and the world, WorldCom provides
telecommunications products and services including: switched and dedicated long
distance products, 800 services, calling cards, domestic and international
private lines, broadband data services, debit cards, conference calling,
advanced billing systems, enhanced faxed and data connections, local switched
service and high speed data communications, single source integrated local and
long distance switched services, high speed data communications services and
facilities management, local access to long distance companies, and local
access asynchronous-transfer-mode-based ("ATM-based") backbone service and
interconnection via Network Access Points ("NAPs") to Internet service
providers.
On August 12, 1996, MFS acquired UUNET through a merger of a subsidiary of
MFS with and into UUNET (the "UUNET Acquisition"). UUNET is a leading
worldwide provider of a comprehensive range of Internet access options,
applications, and consulting services to businesses, professionals and on-line
services providers. UUNET provides both dedicated and dial-up Internet access,
and other applications and services which
4
<PAGE> 6
include Web server hosting and integration services, client software and
security products, training, and network integration and consulting services.
On January 5, 1995, WorldCom completed the acquisition of the network
services operations of WilTel for approximately $2.5 billion in cash (the
"WilTel Acquisition"). Through the WilTel Acquisition, WorldCom acquired a
nationwide common carrier network of approximately 11,000 miles of fiber optic
cable and digital microwave facilities.
On December 30, 1994, WorldCom, through a wholly owned subsidiary, merged
with IDB Communications Group, Inc. ("IDB") (the "IDB Merger"). IDB operates a
domestic and international communications network providing private line and
public switched long distance telecommunications services, facsimile and data
connections, television and radio transmission services, and mobile satellite
communications capabilities. As a result of the IDB Merger, each share of
common stock of IDB was converted into the right to receive 0.476879 shares of
WorldCom Common Stock, resulting in the issuance of approximately 71.8 million
shares of WorldCom Common Stock. In addition, WorldCom assumed, on a
subordinated basis, jointly and severally with IDB, the obligations of IDB to
pay the principal of and interest on $195.5 million 5% convertible subordinated
notes due 2003, issued by IDB. On July 15, 1996, WorldCom announced that it had
exercised its option to redeem on August 16, 1996 all of the outstanding IDB
notes. Prior to such redemption date, a majority of the holders of the IDB
notes elected to convert their notes into WorldCom common stock, resulting in
the issuance of approximately 10.3 million shares of WorldCom Common Stock.
The IDB Merger was accounted for as a pooling-of-interests and, accordingly, the
WorldCom financial statements for the periods prior to the IDB Merger have been
restated to include the results of IDB for all periods presented.
WorldCom's principal executive offices are located at 515 East Amite
Street, Jackson, Mississippi 39201-2702, and its telephone number is (601)
360-8600.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include the repayment of indebtedness,
acquisitions, additions to working capital, and capital expenditures.
5
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
each of the five years ended December 31, 1995 and for the nine months ended
September 30, 1996, which ratios are based on the historical consolidated
financial statements of WorldCom. The table also sets forth the pro forma
combined data for the year ended December 31, 1995, and for the nine months
ended September 30, 1996, which data give effect to the Merger and the UUNET
Acquisition as if it had occurred January 1, 1995. The pro forma combined data
are presented for comparative purposes only and are not intended to be
indicative of actual results had the transactions occurred as of the date
indicated above nor do they purport to indicate results which may be attained
in the future.
<TABLE>
<CAPTION>
Historical
----------
Year Ended December 31,
1991 1992 1993 1994 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges 2.53:1 1.40:1 4.14:1 0.13:1 2.31:1
Deficiency of Earnings
to Fixed Charges (in
thousands) -- -- -- 78,008 --
<CAPTION>
Pro Forma Combined Historical
------------------ ----------
Year Ended Nine Months Ended Nine Months Ended
December 31, September 30, September 30,
1995 1996 1996
----- ---- ----
<S> <C> <C> <C>
Ratio of Earnings to
Fixed Charges 0.41:1 N/A 1.40:1
Deficiency of Earnings
to Fixed Charges (in
thousands) 229,944 440,382 --
</TABLE>
NOTES TO COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
(1) For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of pretax income (loss) from continuing operations, and
fixed charges consist of interest (including capitalized interest) on all
indebtedness, amortization of debt discount and expense and that portion
of rental expense which the Company believes to be representative of
interest. For the historical year ended December 31, 1994 and the pro
forma combined periods ended December 31, 1995 and September 30, 1996,
earnings were inadequate to cover fixed charges by the amounts shown.
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<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Indentures under which the Debt Securities
are to be issued. The particular terms of each issue of Debt Securities, as
well as any modifications or additions to such general terms that may apply in
the case of such Debt Securities, will be described in the Prospectus
Supplement relating to such Debt Securities. Accordingly, for a description of
the terms of a particular issue of Debt Securities, reference must be made to
both the Prospectus Supplement relating thereto and to the following
description.
At September 30, 1996, the aggregate amount of indebtedness of the Company
that would have ranked pari passu with the Senior Securities was approximately
$3.27 billion, which represents the amount outstanding under the Company's
revolving credit facility. The Debt Securities will be effectively
subordinated to all obligations, including trade payables, of the Company's
subsidiaries. On a pro-forma basis, after giving effect to the Merger, as of
September 30, 1996, the aggregate amount of indebtedness of the Company and the
obligations of the Company's subsidiaries (excluding intercompany indebtedness)
that would have ranked senior to the Debt Securities was approximately $5.51
billion; of this amount, (i) $639.1 million represented the accreted value of
MFS's 9 3/8% Senior Discount Notes due 2004; (ii) $636.7 million represented
the accreted value of MFS's 8 7/8% Senior Discount Notes due 2006; (iii) $36.0
million was outstanding under MFS's secured revolving credit facility; and (iv)
$928.7 million represented the other outstanding obligations of the Company's
subsidiaries to which the holders of Debt Securities would be structurally
subordinated, including trade payables.
THE INDENTURES
Senior Securities, if issued in the future, will be issued under an
Indenture ("Senior Indenture") between the Company and one or more trustees to
be selected by the Company (collectively, the "Senior Trustee"). Subordinated
Securities, if issued in the future, will be issued under an Indenture (the
"Subordinated Indenture") between the Company and one or more trustees to be
selected by the Company (the "Subordinated Trustee"). The Senior Indenture and
the Subordinated Indenture are sometimes referred to herein collectively as the
"Indentures" and individually as an "Indenture." The Senior Trustee and the
Subordinated Trustee are sometimes referred to herein as the "Trustee."
The Indentures have been filed as exhibits to the Registration Statement
of which this Prospectus is a part. Each Indenture will be available for
inspection at the offices of the Trustee. The following description of the
Indentures and summaries of certain provisions thereof do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all provisions of the respective Indentures. All section references
appearing herein are to sections of the applicable Indenture or Indentures, and
capitalized terms defined in the Indentures are used herein as therein defined
(unless otherwise defined herein).
GENERAL TERMS OF DEBT SECURITIES
Each Indenture provides that the Debt Securities issued thereunder may be
issued without limit as to aggregate principal amount, in one or more series,
in each case as established from time to time in or pursuant to authority
granted by a resolution of the Board of Directors of the Company or as
established in one or more indentures supplemental to such Indenture (Section
301 of the Indentures). Each Indenture also provides that there may be more
than one Trustee under such Indenture, each with respect to one or more series
of Debt Securities. Any Trustee under either Indenture may resign or be
removed with respect to one or more series of Debt Securities issued under such
Indenture, and a successor Trustee may be appointed to act with respect to such
series (Section 608 of the Indentures).
In the event that two or more persons are acting as Trustee with respect
to different series of Debt Securities issued under the same Indenture, each
such Trustee shall be a Trustee of a trust under such Indenture separate and
apart from the trust administered by any other such Trustee (Section 609 of the
Indentures), and, except as otherwise indicated herein, any action described
herein to be taken by the Trustee may be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Debt Securities for
which it is
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<PAGE> 9
Trustee under such Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities to be offered for the following terms thereof: (1) the title
of such Debt Securities; (2) any limit on the aggregate principal amount of
such Debt Securities; (3) the purchase price of such Debt Securities (expressed
as a percentage of the principal amount); (4) the date or dates, or the method
for determining such date or dates, on which the principal (and premium, if
any) of such Debt Securities will be payable; (5) the rate or rates (which may
be fixed or variable), or the method by which such rate or rates shall be
determined, at which such Debt Securities will bear interest, if any; (6) the
date or dates from which any such interest will accrue, the Interest Payment
Dates on which any such interest will be payable, the Regular Record Dates for
the interest payable on any registered Security on such Interest Payment Dates,
and the basis upon which interest shall be calculated if other than that of a
360 day year of twelve 30-day months; (7) the place or places where the
principal of (and premium, if any) and interest, if any, on such Debt
Securities will be payable and such Debt Securities may be surrendered for
registration of transfer or exchange; (8) the period or periods within which,
the price or prices at which and the terms and conditions upon which such Debt
Securities may be redeemed, as a whole or in part, at the option of the
Company, if the Company is to have such an option; (9) the obligation, if any,
of the Company to redeem or purchase such Debt Securities pursuant to any
sinking fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which and the terms
and conditions upon which such Debt Securities will be redeemed or purchased,
as a whole or in part, pursuant to such obligation; (10) if other than U.S.
dollars, the currency or currencies in which such Debt Securities are
denominated and payable, which may be a foreign currency or units of two or
more foreign currencies or a composite currency or currencies, and the terms
and conditions relating thereto; (11) whether the amount of payments of
principal of (and premium, if any) or interest, if any, on such Debt Securities
may be determined with reference to an index, formula or other method (which
index, formula or method may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or currencies) and the manner in
which such amounts shall be determined; (12) any additions, modifications or
deletions in the terms of such Debt Securities with respect to the Events of
Default set forth in the respective Indentures; (13) any additions,
modifications or deletions in the terms of such Debt Securities with respect to
the other covenants set forth in the respective Indentures; (14) whether such
Debt Securities will be issued in certificated or book-entry form; (15) whether
such Debt Securities will be in registered or bearer form and, if in registered
form, the denominations thereof if other than $1,000 or any integral multiple
thereof and, if in bearer form, the denominations thereof if other than $5,000
or any integral multiple thereof; (16) the applicability, if any, of the
defeasance and covenant defeasance provisions of Article XIV of the applicable
Indenture; and (17) any other terms of such Debt Securities not inconsistent
with the provisions of the respective Indentures (Section 301 of the
Indentures).
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. Special U.S. federal income tax, accounting and
other considerations applicable thereto will be described in the applicable
Prospectus Supplement.
Unless otherwise provided with respect to a series of Debt Securities, the
Debt Securities (other than those issued in global form) will be issued in
registered form without coupons in denominations of $1,000 and integral
multiples thereof (Section 302 of the Indentures).
CERTIFICATED SECURITIES
Except as may be set forth in the applicable Prospectus Supplement, Debt
Securities will not be issued in certificated form. If, however, Debt
Securities are to be issued in certificated form, no service charge will be
made for any transfer or exchange of any Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (Section 305 of the Indentures).
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (each, a "Global Security") that will be
deposited with, or on behalf of, a depository identified in the
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Prospectus Supplement. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form. Unless otherwise
provided in the Prospectus Supplement, Debt Securities that are represented by a
Global Security will be issued in denominations of $1,000 and any integral
multiple thereof, and will be issued in registered form only, without coupons.
Payments of principal of, premium, if any, and interest on Debt Securities
represented by a Global Security will be made by the Company to the Trustee
under the applicable Indenture, and then forwarded to the depository.
The Company anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company, New York, New York ("DTC"), that
such Global Securities will be registered in the name of DTC's nominee, and
that the following provisions will apply to the depository arrangements with
respect to any such Global Securities. Additional or differing terms of the
depository arrangements will be described in the Prospectus Supplement relating
to a particular series of Debt Securities issued in the form of Global
Securities.
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be considered the sole
Holder of the Debt Securities represented by such Global Security for all
purposes under the applicable Indenture. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities in
certificated form and will not be considered the owners or Holders thereof
under the applicable Indenture. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
certificated form; accordingly, such laws may limit the transferability of
beneficial interests in a Global Security. Accordingly, each person owning a
beneficial interest in a Global Security must rely on DTC's procedures and, if
such person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the applicable Indenture. If the Company requests any action of holders or if
an owner of a beneficial interest in a Global Security desires to take any
action that a holder is entitled to take unde the applicable Indenture, DTC
will authorize the participants holding the relevant beneficial interests to
give or take such action, and such participants will otherwise act upon the
instructions of beneficial owners holding through them.
If DTC is at any time unwilling or unable to continue as depository or if
at any time DTC ceases to be a clearing agency registered under the Exchange
Act if so required by applicable law or regulation, and, in either case, a
successor depository is not appointed by the Company within 90 days, the
Company will issue individual Debt Securities in certificated form in exchange
for the Global Securities. In addition, the Company may at any time, and in
its sole discretion, determine not to have any Debt Securities represented by
one or more Global Securities, and, in such event, will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest and to have such Debt Securities in certificated form
registered in its name. Unless otherwise provided in the Prospectus
Supplement, Debt Securities so issued in certificated form will be issued in
denominations of $1,000 or any integral multiple thereof, and will be issued in
registered form only, without coupons.
The following is based on information furnished by DTC:
DTC will act as securities depository for the Debt Securities. The
Debt Securities will be issued as fully registered securities registered
in the name of Cede & Co. (DTC's partnership nominee). One fully
registered Debt Security certificate is issued with respect to each $200
million of principal amount of the Debt Securities of a series, and an
additional certificate is issued with respect to any remaining principal
amount of such series.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" reigstered pursuant to the provisions of Section
17A of the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement
among
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Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the
need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and
by the New York Stock Exchange, Inc., the American Stock Exchange, Inc.
and the National Association of Securities Dealers, Inc. Access to the
DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and
its Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security ("Beneficial Owner") is in turn recorded
on the Direct and Indirect Participants' records. A Beneficial Owner
does not receive written confirmation from DTC of its purchase, but such
Beneficial Owner is expected to receive a written confirmation providing
details of the transaction, as well as periodic statements of its
holdings, from the Direct or Indirect Participant through which such
Beneficial Owner entered into the transaction. Transfers of ownership
interests in Debt Securities are accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial
Owners do not receive certificates representing their ownership interests
in Debt Securities, except in the event that use of the book-entry system
for the Debt Securities is discontinued.
To facilitate subsequent transfers, the Debt Securities are
registered in the name of DTC's partnership nominee, Cede & Co. The
deposit of the Debt Securities with DTC and their registration in the
name of Cede & Co. will effect no change in beneficial ownership. DTC
has no knowledge of the actual Beneficial Owners of the Debt Securities;
DTC records reflect only the identity of the Direct Participants to whose
accounts Debt Securities are credited, which may or may not be the
Beneficial Owners. The Participants remain responsible for keeping
account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners are
governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of
the Debt Securities within an issue are being redeemed, DTC's practice is
to determine by lot the amount of interest of each Direct Participant in
such issue to be redeemed.
Neither DTC nor Cede & Co. consents or votes with respect to the
Debt Securities. Under its usual procedures, DTC mails a proxy (an
"Omnibus Proxy") to the issuer as soon as possible after the record date.
The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Debt Securities are
credited on the record date (identified on a list attached to the Omnibus
Proxy).
Principal, premium, if any, and interest payments on the Debt
Securities are made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings as shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments
by Participants to Beneficial Owners are governed by standing
instructions and customary practices, as is the case with securities held
for the accounts of customers in bearer form or registered in "street
name," and are the responsibility of such Participant and not of DTC, the
applicable Trustee or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of
principal, premium, if any, and interest to DTC is the responsibility of
the Company or the applicable Trustee, disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners is the responsibility of Direct
and Indirect Participants.
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DTC may discontinue providing its services as securities depository
with respect to the Debt Securities at any time by giving reasonable
notice to the Company or the applicable Trustee. Under such
circumstances, in the event that a successor securities depository is not
appointed, Debt Security certificates are required to be printed and
delivered.
The Company may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities depository).
In that event, Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or
any applicable paying agent will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in a Global Security, or for maintaining, supervising or reviewing
any records relating to such beneficial interest.
MERGER
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other
corporation, provided that (a) either the Company shall be the continuing
corporation, or the successor corporation (if other than the Company) formed by
or resulting from any such consolidation or merger or which shall have received
the transfer of such assets shall expressly assume payment of the principal of
(and premium, if any) and interest on all the Debt Securities and the
performance and observance of all the covenants and conditions of the
applicable Indenture; and (b) the Company or such successor corporation shall
not immediately thereafter be in default under the applicable Indenture
(Section 801 of the Indentures).
EVENTS OF DEFAULT, NOTICE AND WAIVER
Senior Indenture. The Senior Indenture provides that the following events
are Events of Default with respect to any series of Debt Securities issued
thereunder: (a) default for 30 days in the payment of any installment of
interest on any Debt Security of such series; (b) default in the payment of the
principal of (or premium, if any, on) any Debt Security of such series at its
Maturity; (c) default in making a sinking fund payment required for any Debt
Security of such series; (d) default in the performance of any other covenant
of the Company in the Senior Indenture (other than a covenant included in the
Senior Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), continued for 60 days after written notice
as provided in the Senior Indenture; (e) certain events of default resulting in
the acceleration of the maturity of indebtedness aggregating in excess of
$10,000,000 under any mortgages, indentures (including the Indentures) or
instruments under which the Company may have issued, or by which there may have
been secured or evidenced, any other indebtedness (including Debt Securities of
any other series) of the Company, but only if such indebtedness is not
discharged or such acceleration is not rescinded or annulled; (f) certain
events of bankruptcy, insolvency or reorganization, or court appointment of a
receiver, liquidator or trustee of the Company or its property; and (g) any
other Event of Default provided with respect to a particular series of Debt
Securities (Section 501 of the Senior Indenture).
The Senior Trustee may withhold notice to the Holders of any series of
Debt Securities of any default with respect to such series (except a default in
the payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund installment in
respect of any Debt Security of such series) if the Responsible Officers of the
Senior Trustee consider such withholding to be in the interest of such Holders
(Section 601 of the Senior Indenture).
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If an Event of Default under the Senior Indenture with respect to Debt
Securities of any series issued thereunder at the time Outstanding occurs and
is continuing, then in every such case the Senior Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Debt Securities of that
series may declare the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all of the Debt Securities
of that series to be due and payable immediately by written notice thereof to
the Company (and to the Senior Trustee if given by the Holders). However, at
any time after such a declaration of acceleration with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding under the
Senior Indenture, as the case may be) has been made, but before a judgment or
decree for payment of the money due has been obtained by the Senior Trustee
prior to the Stated Maturity thereof, the Holders of a majority in principal
amount of Outstanding Debt Securities of such series (or of all Debt Securities
then Outstanding under the Senior Indenture, as the case may be) may, subject
to certain conditions, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal (or specified
portion thereof), with respect to Debt Securities of such series (or of all
Debt Securities then Outstanding under the Senior Indenture, as the case may
be) have been cured or waived as provided in the Senior Indenture (Section 502
of the Senior Indenture). The Senior Indenture also provides that the Holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of any series issued thereunder (or of all Debt Securities then
Outstanding under the Senior Indenture, as the case may be) may waive certain
past defaults with respect to such series and its consequences (Section 513 of
the Senior Indenture). Reference is made to the Prospectus Supplement relating
to any series of Debt Securities issued under the Senior Indenture which are
Original Issue Discount Securities for the particular provisions relating to
acceleration of a portion of the principal amount of such Original Issue
Discount Securities upon the occurrence of an Event of Default and the
continuation thereof. Within 120 days after the close of each fiscal year, the
Company must file with the Senior Trustee a statement, signed by specified
officers, stating whether or not such officers have knowledge of any default
under the Senior Indenture and, if so, specifying each such default and the
nature and status thereof (Section 1006 of the Senior Indenture).
Subject to provisions in the Senior Indenture relating to its duties in
case of default, the Senior Trustee is under no obligation to exercise any of
its rights or powers under the Senior Indenture at the request or direction of
any Holders of any series of Debt Securities then Outstanding under the Senior
Indenture, unless such Holders shall have offered to the Senior Trustee
reasonable security or indemnity (Section 602 of the Senior Indenture).
Subject to such provisions for indemnification and certain limitations
contained in the Senior Indenture, the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series issued
thereunder (or of all Debt Securities then Outstanding under the Senior
Indenture, as the case may be) shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Senior
Trustee, or of exercising any trust or power conferred upon the Senior Trustee
(Section 512 of the Senior Indenture).
Subordinated Indenture. The Subordinated Indenture provides that the
following events are Events of Default with respect to any series of Debt
Securities issued thereunder: (a) default for 30 days in the payment of any
installment of interest on any Debt Security of such series; (b) default in the
payment of the principal of (or premium, if any, on) any Debt Security of such
series at its Maturity; (c) default in making a sinking fund payment required
for any Debt Security of such series; (d) default in the performance of any
other covenant of the Company in the Subordinated Indenture (other than a
covenant included in the Subordinated Indenture solely for the benefit of a
series of Debt Securities issued thereunder other than such series), continued
for 60 days after written notice as provided in the Subordinated Indenture; (e)
certain events of default resulting in the acceleration of the maturity of
indebtedness aggregating in excess of $10,000,000 under any mortgages,
indentures (including the Indentures) or instruments under which the Company
may have issued, or by which there may have been secured or evidenced, any
other indebtedness (including Debt Securities of any other series) of the
Company, but only if such indebtedness is not discharged or such acceleration
is not rescinded or annulled; (f) certain events relating to the bankruptcy,
insolvency or reorganization, or court appointment of a receiver, liquidator or
trustee of the Company or its property; and (g) any other Event of Default
provided with respect to a particular series of Debt Securities (Section 501 of
the Subordinated Indenture).
As with the Senior Indenture, the Subordinated Trustee may withhold notice
to the Holders of any series of
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Debt Securities issued under the Subordinated Indenture of any default with
respect to such series (except a default in the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if the Responsible Officers of the Subordinated Trustee consider such
withholding to be in the interest of such Holders (Section 601 of the
Subordinated Indenture).
If an Event of Default under the Subordinated Indenture with respect to
Debt Securities of any series issued thereunder at the time outstanding occurs
and is continuing, then in every such case the Subordinated Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms thereof) of all of the
Debt Securities of that series to be due and payable immediately by written
notice thereof to the Company (and to the Subordinated Trustee if given by the
Holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
Outstanding under the Subordinated Indenture, as the case may be) has been
made, but before a judgment or decree for payment of the money due has been
obtained by the Subordinated Trustee prior to the Stated Maturity thereof, the
Holders of a majority in principal amount of Outstanding Debt Securities of
such series (or of all Debt Securities then Outstanding under the Subordinated
Indenture, as the case may be) may, subject to certain conditions, rescind and
annul such acceleration if all Events of Default, other than the non-payment of
accelerated principal (on specified portion thereof), with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding under the
Subordinated Indenture, as the case may be) have been cured or waived as
provided in such Indenture (Section 502 of the Subordinated Indenture). The
Subordinated Indenture also provides that the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of such series
issued thereunder (or of all Debt Securities then Outstanding under the
Subordinated Indenture, as the case may be) may waive certain past defaults
with respect to such series and its consequences (Section 513 of the
Subordinated Indenture). Reference is made to the Prospectus Supplement
relating to any series of Debt Securities issued under the Subordinated
Indenture which are Original Issue Discount Securities for the particular
provisions relating to acceleration of a portion of the principal amount of
such Original Issue Discount Securities upon the occurrence of an Event of
Default and the continuation thereof. Within 120 days after the close of each
fiscal year, the Company must file with the Subordinated Trustee a statement,
signed by specified officers, stating whether or not such officers have
knowledge of any default under the Subordinated Indenture and, if so,
specifying each such default and the nature and status thereof (Section 1004 of
the Subordinated Indenture).
Subject to provisions in the Subordinated Indenture relating to its duties
in case of default, the Subordinated Trustee is under no obligation to exercise
any of its rights or powers under the Subordinated Indenture at the request or
direction of any Holders of any series of Debt Securities then Outstanding
under the Subordinated Indenture, unless such Holders shall have offered to the
Subordinated Trustee reasonable security or indemnity (Section 602 of the
Subordinated Indenture). Subject to such provisions for indemnification and
certain limitations contained in the Subordinated Indenture, the Holders of not
less than a majority in principal amount of the Outstanding Debt Securities of
any series issued thereunder (or of all Debt Securities then Outstanding under
the Subordinated Indenture, as the case may be) shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Subordinated Trustee, or of exercising any trust or power
conferred upon the Subordinated Trustee (Section 512 of the Subordinated
Indenture).
MODIFICATION OF THE INDENTURES
Senior Indentures. Modifications and amendments of the Senior Indenture
may be made only with the consent of the Holders of not less than a majority in
aggregate principal amount of all Outstanding Debt Securities under the Senior
Indenture which are affected by the modifications or amendment; provided that
no such modification or amendment may, without the consent of the Holder of
each such Debt Security affected thereby, (a) change the Stated Maturity of the
principal of (or premium, if any, on), or any installment of interest on, any
such Debt Security; (b) reduce the principal amount of, or the rate or amount
of interest on, or any premium payable on redemption of, any such Debt
Security, or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon declaration of acceleration of the
Maturity thereof or would be provable in bankruptcy, or adversely affect any
right of repayment of the Holder of any such Debt Security; (c) change the
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Place of Payment, or the coin or currency, for payment of principal of, premium,
if any, or interest on any such Debt Security; (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any such Debt
Security; or (e) reduce the above-stated percentage of Outstanding Debt
Securities of any series necessary to modify or amend the Senior Indenture or to
waive compliance with certain provisions thereof or certain defaults and
consequences thereunder (Section 902 of the Senior Indenture). The Senior
Indenture also contains provisions permitting the Company and the Senior Trustee
to amend the Senior Indenture without the consent of the holders of any Senior
Securities in certain limited circumstances, such as to evidence the succession
of another entity to the Company and the assumption by such successor of the
covenants of the Company contained in the Senior Indenture, to secure the
Securities and to cure any ambiguity, to correct or supplement any provision in
the Senior Indenture which may be inconsistent with any other provision of the
Senior Indenture. (Section 901 of the Senior Indenture).
Subordinated Indenture. Modifications and amendments of the Subordinated
Indenture may be made only with the consent of the Holders of not less than a
majority in aggregate principal amount of all Outstanding Debt Securities under
the Subordinated Indenture which are affected by the modifications or
amendment; provided that no such modification or amendment may, without the
consent of the Holder of each such Debt Security affected thereby, (a) change
the Stated Maturity of the principal of (or premium if any, on), or any
installment of interest on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium payable on
redemption of, any such Debt Security, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon declaration
of acceleration of the Maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the Holder of any such Debt
Security; (c) change the Place of Payment, or the coin or currency, for payment
of principal of, premium, if any, or interest on any such Debt Security; (d)
impair the right to institute suit for the enforcement of any payment on or
with respect to any such Debt Security; (e) reduce the above-stated percentage
of Outstanding Debt Securities of any series necessary to modify or amend the
Subordinated Indenture or to waive compliance with certain provisions thereof
or certain defaults and consequences thereunder; or (f) subordinate the
indebtedness evidenced by any such Debt Security to any indebtedness of the
Company other than Senior Indebtedness (as defined in the Subordinated
Indenture) (Section 902 of the Subordinated Indenture). The Subordinated
Indenture also contains provisions permitting the Company and the Subordinated
Trustee to amend the Subordinated Indenture without the consent of the holders
of any Subordinated Securities in certain limited circumstances, such as to
evidence the succession of another entity to the Company and the assumption by
such successor of the covenants of the Company contained in the Subordinated
Indenture, to secure the Securities and to cure any ambiguity, to correct or
supplement any provision in the Subordinated Indenture which may be
inconsistent with any other provision of the Subordinated Indenture. (Section
901 of the Subordinated Indentures).
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that, if the provisions of Article Fourteen are
made applicable to the Debt Securities of or within any series and any related
coupons pursuant to Section 301 of either Indenture, the Company may elect
either (a) to defease and be discharged from any and all obligations with
respect to such Debt Securities and any related coupons (except for the
obligation to pay Additional Amounts, if any, upon the occurrence of certain
events of tax, assessment or governmental charge with respect to payments on
such Debt Securities and the obligations to register the transfer or exchange
of such Debt Securities and any related coupons, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities and any related coupons,
to maintain an office or agency in respect of such Debt Securities and any
related coupons and to hold moneys for payment in trust) ("defeasance")
(Section 1402 of the Indentures) or (b) if provided pursuant to Section 301 of
either Indenture, to be released from its obligations with respect to any
covenant, and any omission to comply with such obligations shall not constitute
a default or an Event of Default with respect to such Debt Securities and any
related coupons ("covenant defeasance") (Section 1403 of the Indentures), in
either case upon the irrevocable deposit by the Company with the relevant
Trustee (or other qualifying trustee), in trust, of an amount, in such currency
or currencies, currency unit or units or composite currency or currencies in
which such Debt Securities and any related coupons are then specified as
payable at Stated Maturity, or Government Obligations (as defined below), or
both, applicable to such Debt Securities and any related coupons (with such
applicability being determined on the basis of the currency, currency unit or
composite currency in which such Debt Securities are then specified as payable
at Stated Maturity) which through the payment of principal and interest in
accordance with their terms will provide
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money in an amount sufficient to pay the principal of (and premium, if any) and
interest, if any, on such Debt Securities and any related coupons, and any
mandatory sinking fund or analogous payments thereon, on the scheduled due dates
therefor.
Such a trust may only be established if, among other things, the Company
has delivered to the relevant Trustee an Opinion of Counsel (as specified in
the Indentures) to the effect that the Holders of such Debt Securities and any
related coupons will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case of
defeasance under clause (a) above, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable United States federal
income tax law occurring after the date of the Indenture (Section 1404 of the
Indentures).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt (Section 101 of the
Indentures).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the terms of such Debt Security to receive payment in a
currency, currency unit or composite currency other than that in which such
deposit has been made in respect of such Debt Security, or (b) the currency,
currency unit or composite currency in which such deposit has been made in
respect of any Debt Security of such series ceases to be used by its government
of issuance, the indebtedness represented by such Debt Security shall be deemed
to have been, and will be, fully discharged and satisfied through the payment
of the principal of (and premium, if any) and interest, if any, on such Debt
Security as they become due out of the proceeds yielded by converting the
amount so deposited in respect of such Debt Security into the currency,
currency unit or composite currency in which such Debt Security becomes payable
as a result of such election or such cessation of usage based on the applicable
Market Exchange Rate (Section 1405 of the Indentures). Unless otherwise
provided in the applicable Prospectus Supplement, all payments of principal of
(and premium, if any) and interest, if any, and Additional Amounts, if any, on
any Debt Security that is payable in a foreign currency, currency unit or
composite currency that ceases to be used by its government of issuance shall
be made in U.S. dollars (Section 312 of the Indentures).
In the event the Company effects covenant defeasance with respect to any
Debt Securities and any related coupons and such Debt Securities and any related
coupons are declared due and payable because of the occurrence of any Event of
Default other than the Events of Default described in clauses (d) and (g) under
"Events of Default, Notice and Waiver - Senior Indenture" and in clauses (d) and
(g) under "Events of Default, Notice and Waiver - Subordinated Indenture," the
amount in such currency, currency unit or composite currency in which such Debt
Securities and any related coupons are payable, and Government Obligations on
deposit with the relevant Trustee, will be sufficient to pay amounts due on such
Debt Securities and any related coupons at the time of their Stated Maturity but
may not be sufficient to pay amounts due on such Debt Securities and any related
coupons at the time of the acceleration resulting from such Event of Default.
However, the Company would remain liable to make payment of such amounts due at
the time of acceleration.
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The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series and any related coupons.
SENIOR SECURITIES
Senior Securities are to be issued under the Senior Indenture. Each
series of Senior Securities will constitute Senior Indebtedness and will rank
equally with each other series of Senior Securities and other Senior
Indebtedness. All subordinated debt (including, but not limited to, all
Subordinated Securities issued under the Subordinated Indenture) will be
subordinated to the Senior Securities and other Senior Indebtedness.
SUBORDINATION OF SUBORDINATED SECURITIES
Subordinated Indenture. The payment of the principal of (and premium, if
any) and interest on the Subordinated Securities will be subordinated as set
forth in the Subordinated Indenture to the Senior Indebtedness of the Company,
whether outstanding on the date of the Subordinated Indenture or thereafter
incurred (Section 1601 of the Subordinated Indenture). The applicable
Prospectus Supplement for each issuance of Subordinated Securities will set
forth the aggregate amount of outstanding indebtedness of the Company as of the
most recent practicable date that by the terms of such indebtedness would be
senior to and pari passu to the offered Subordinated Securities.
Ranking. No class of Subordinated Securities is subordinated to any other
class of subordinated debt securities. See "Subordination Provisions" below.
Subordination Provisions. In the event (a) of any distribution of assets
of the Company upon any dissolution, winding up, liquidation or reorganization
of the Company, whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of the Company or
otherwise, except a distribution in connection with a merger or consolidation
or a conveyance or transfer of all or substantially all of the properties of
the Company which complies with the requirements of Article Eight of the
Subordinated Indenture, or (b) that a default shall have occurred and be
continuing with respect to the payment of principal of (or premium, if any) or
interest on any Senior Indebtedness, or (c) that the principal of the
Subordinated Securities of any series issued under the Subordinated Indenture
(or in the case of Original Issue Discount Securities, the portion of the
principal amount thereof referred to in Section 502 of the Subordinated
Indenture) shall have been declared due and payable pursuant to Section 502 of
the Subordinated Indenture, and such declaration shall not have been rescinded
and annulled as provided in said Section 502, then:
(1) in a circumstance described in the foregoing clause (a) or (b)
the holders of all Senior Indebtedness, and in the circumstance described
in the foregoing clause (c) the holders of all Senior Indebtedness
outstanding at the time the principal of such Subordinated Securities
issued under the Subordinated Indenture (or in the case of Original Issue
Discount Securities, such portion of the principal amount) shall have
been so declared due and payable, shall first be entitled to receive
payment of the full amount due thereon in respect of principal, premium
(if any) and interest, or provision shall be made for such payment in
money or money's worth, before the Holders of any of the Subordinated
Securities are entitled to receive any payment on account of the
principal of (or premium, if any) or interest on the indebtedness
evidenced by the Subordinated Securities;
(2) if upon any payment or distribution contemplated in clause (1)
after giving effect to the subordination provisions contemplated therein
there shall remain any amounts of cash, property or securities of the
Company available for payment or distribution in respect of Subordinated
Securities, then the amount of such cash, property or securities shall be
shared ratably among the Holders of all Subordinated Securities issued
under the Subordinated Indenture and any subordinated indebtedness ranking
on a parity therewith;
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(3) any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities (other than
certain subordinated securities of the Company issued in a reorganization
or readjustment), to which the Holders of any of the Subordinated
Securities would be entitled except for the provisions of Article XVI of
the Subordinated Indenture shall be paid or delivered by the person making
such payment or distribution directly to the holders of Senior
Indebtedness (as provided in clauses (1) and (2) above), or their
representatives on their behalf, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness, to the
extent necessary to make payment in full of all Senior Indebtedness (as
provided in clauses (1) and (2) above) remaining unpaid after giving
effect to any concurrent payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the Subordinated Securities;
(4) in the event that, notwithstanding the foregoing, any payment by,
or distribution of assets of, the Company of any kind or character is
received by the Holders of any of the Subordinated Securities issued under
the Subordinated Indenture before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representatives on their behalf, ratably as
aforesaid, for application to the payment of all such Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Senior Indebtedness.
By reason of such subordination in favor of the holders of Senior
Indebtedness in the event of insolvency of the Company, certain general
creditors of the Company, including holders of Senior Indebtedness, may recover
more, ratably, than the Holders of the Subordinated Securities upon such
insolvency.
DESIGNATION OF SENIOR INDEBTEDNESS
Senior Indebtedness is defined in the Subordinated Indenture to mean (i)
the principal of and premium, if any, and unpaid interest on indebtedness for
money borrowed, (ii) purchase money and similar obligations, (iii) obligations
under capital leases, (iv) guarantees, assumptions or purchase commitments
relating to, or other transactions as a result of which the Company is
responsible for the payment of, such indebtedness of others, (v) renewals,
extensions and refunding of any such indebtedness, (vi) interest or obligations
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings; and (vii) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (i) through
(vii) hereof expressly provides that such indebtedness or obligation is
subordinate or junior in right of payment to any other indebtedness or
obligations of the Company. (Section 101 of the Subordinated Indenture).
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in or outside the United States
through underwriters, through or to dealers, directly to one or more
purchasers, or through agents. The Prospectus Supplement with respect to the
Debt Securities offered hereby will set forth the terms of the offering of the
Debt Securities, including the name or names of any underwriters, dealers, or
agents, the purchase price of the Debt Securities and the proceeds to the
Company from such sale, any delayed delivery arrangements, any underwriting
discounts and other items constituting underwriters' compensation, the initial
public offering price, any discounts or concessions allowed or re-allowed or
paid to dealers, and any securities exchanges on which the Debt Securities may
be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
Debt Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Debt Securities will be named
in the Prospectus Supplement relating to such offering, and if an underwriting
syndicate
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is used, the managing underwriter or underwriters will be set forth on the cover
of such Prospectus Supplement. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters or agents to
purchase the Debt Securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all the Debt Securities if any are
purchased. The initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
If dealers are used in the sale of Debt Securities with respect to which
this Prospectus is delivered, the Company will sell such Debt Securities to the
dealers as principals. The dealers may then resell such Debt Securities to the
public at varying prices to be determined by such dealers at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Debt Securities with respect to which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Debt Securities, underwriters or agents
may receive compensation from the Company or from purchasers of Debt Securities
for whom they may act as agents in the form of discounts, concessions, or
commissions. Underwriters, agents, and dealers participating in the
distribution of the Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on
the resale of the Debt Securities by them may be deemed to be underwriting
discounts or commissions under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters, or dealers to solicit offers from certain types of
institutions to purchase Debt Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers, and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments that such agents, dealers, or underwriters may be
required to make with respect thereto. Agents, dealers, and underwriters may
be customers of, engage in transactions with, or perform services for the
Company in the ordinary course of business.
The Debt Securities may or may not be listed on a national securities
exchange. No assurances can be given that there will be a market for the Debt
Securities.
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
When so provided in the Prospectus Supplement, investors in the Global
Securities representing any of the Securities issued hereunder may hold a
beneficial interest in such Global Securities through DTC, CEDEL or Euroclear
(as defined below) or through participants. The Global Securities may be
traded as home market instruments in both the European and U.S. domestic
markets. Initial settlement and all secondary trades will settle as set forth
in the applicable Prospectus Supplement.
Cedel S.A. ("CEDEL") is incorporated under the laws of Luxembourg as a
professional depository. CEDEL holds securities for its participating
organizations and facilitates the clearance and settlement of securities
transactions between CEDEL participants through electronic book-entry changes
in accounts of CEDEL participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in CEDEL in any of 28
currencies, including United States dollars. CEDEL provides to its participants,
among other things, services for safekeeping, administration, clearance and
settlement of internationally traded securities and securities lending and
borrowing. CEDEL interfaces with domestic markets in several countries. As a
professional
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depository, CEDEL is subject to regulation by the Luxembourg Monetary Institute.
CEDEL participants are recognized financial institutions around the world,
including underwriters, securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations and may include the
underwriters. Indirect access to CEDEL is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a CEDEL participant, either directly or indirectly.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System and to clear and settle transactions
between Euroclear participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may now be settled in any of 32 currencies, including
United States dollars. The Euroclear System includes various other services,
including securities lending and borrowing, and interfaces with domestic
markets in several countries generally similar to the arrangements for
cross-market transfers with DTC. The Euroclear System is operated by Morgan
Guaranty Trust Company of New York, Brussels, Belgium office (the "Euroclear
Operator" or "Euroclear"), under contract with Euroclear Clearance System S.C.,
a Belgian cooperative corporation (the "Cooperative"). All operations are
conducted by the Euroclear Operator, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the Euroclear Operator,
not the Cooperative. The Cooperative establishes policy for the Euroclear
System on behalf of Euroclear participants. Euroclear participants include
banks (including central banks), securities brokers and dealers and other
professional financial intermediaries and may include the underwriters.
Indirect access to the Euroclear System is also available to other firms that
clear through or maintain a custodial relationship with a Euroclear
participant, either directly or indirectly.
The Euroclear Operator is the Belgian branch of Morgan Guaranty Trust
Company of New York ("Morgan") which is a member bank of the Federal Reserve
System. As such, it is regulated and examined by the Federal Reserve Board and
the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear
and the related Operating Procedures of the Euroclear System, and applicable
Belgian law (collectively, the "Terms and Conditions"). The Terms and
Conditions govern transfers of securities and cash within the Euroclear System,
withdrawals of securities and cash from the Euroclear System, and receipts of
payments with respect to securities in the Euroclear System. All securities in
the Euroclear System are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear
participants, and has no record of or relationship with persons holding through
Euroclear participants.
Principal, premium, if any, and interest payments with respect to
Securities held through CEDEL or Euroclear will be credited to the cash
accounts of CEDEL participants or Euroclear participants in accordance with the
relevant system's rules and procedures, to the extent received by its
depositary. Such distributions will be subject to tax reporting in accordance
with relevant United States tax laws and regulations as described below. The
CEDEL or the Euroclear Operator, as the case may be, will take any other action
permitted to be taken by a holder under the relevant Indenture on behalf of a
CEDEL participant or Euroclear participant only in accordance with its relevant
rules and procedures and subject to its depositary's ability to effect such
actions on its behalf through the Depositary.
INITIAL SETTLEMENT
All Global Securities will be registered in the name of Cede & Co. as
nominee of DTC. Investors' interests in the Global Securities will be
represented through financial institutions acting on their behalf as direct and
indirect participants in the Depository. As a result, CEDEL and Euroclear will
hold positions on behalf of their participants through their respective
depositories, Citibank and Morgan, which in turn will hold such positions in
accounts as participants of DTC.
Global Securities held through DTC will follow the settlement practices
described above. Investor securities custody accounts will be credited with
their holdings against payment on the settlement date. Global Securities held
through CEDEL or Euroclear accounts will follow the settlement procedures
applicable to conventional eurobonds, except that there will be no temporary
global security and no "lock-up" or restricted period. Global Securities will
be credited to the securities custody accounts on the settlement date against
payment.
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SECONDARY MARKET TRADING
Since the purchaser determines the place of delivery, it is important to
establish at the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
Trading between DTC Participants. Secondary market trading between DTC
participants will be settled using the procedures described above.
Trading between CEDEL and/or Euroclear Participants. Secondary market
trading between CEDEL participants and/or Euroclear participants will be
settled using the procedures applicable to conventional eurobonds.
Trading between DTC Seller and CEDEL or Euroclear Purchaser. When
beneficial interests in the Global Securities are to be transferred from the
account of a DTC participant to the account of a CEDEL participant or a
Euroclear participant, the purchaser will send instructions to CEDEL or
Euroclear through a participant at least one business day prior to settlement.
CEDEL or Euroclear will instruct Citibank or Morgan, respectively, as the case
may be, to receive a beneficial interest in the Global Securities against
payment. Unless otherwise set forth in the Prospectus Supplement, payment will
include interest accrued on the beneficial interest in the Global Securities so
transferred from and including the last coupon payment date to and excluding
the settlement date, on the basis on which interest is calculated on the Debt
Securities. For transactions settling on the 31st of the month, payment will
include interest accrued to and excluding the first day of the following month.
Payment will then be made by Citibank or Morgan to the DTC participant's
account against delivery of the beneficial interest in the Global Securities.
After settlement has been completed, the beneficial interest in the Global
Securities will be credited to the respective clearing system and by the
clearing system, in accordance with its usual procedures, to the CEDEL or
Euroclear participant's account. The securities credit will appear the next
day (European time) and the cash debit will be back-valued to, and the interest
on the beneficial interest in Global Securities will accrue from, the value
date (which would be the preceding day when settlement occurred in New York).
If settlement is not completed on the intended value date (that is, the trade
fails), the CEDEL or Euroclear cash debit will be valued instead as of the
actual settlement date.
CEDEL participants and Euroclear participants will need to make available
to the respective clearing systems the funds necessary to process same-day
funds settlement. The most direct means of doing so is to preposition funds
for settlement, either from cash on hand or existing lines of credit, as they
would for any settlement occurring within CEDEL or Euroclear. Under this
approach, they may take on credit exposure to CEDEL or Euroclear until the
Global Securities are credited to their accounts one day later.
As an alternative, if CEDEL or Euroclear has extended a line of credit to
them, participants can elect not to preposition funds and allow that credit
line to be drawn upon to finance settlement. Under this procedure, CEDEL
participants or Euroclear participants purchasing beneficial interest in Global
Securities would incur overdraft charges for one day, assuming they cleared the
overdraft when the beneficial interests in the Global Securities were credited
to their accounts. However, interest on the beneficial interests in the Global
Securities would accrue from the value date. Therefore, in many cases the
investment income on the Global Securities earned during that one-day period
may substantially reduce or offset the amount of such overdraft charges,
although this result will depend on each participant's particular cost of
funds.
Since the settlement is taking place during New York business hours, DTC
participants can employ their usual procedures for sending a beneficial
interest in Global Securities to Citibank or Morgan for the benefit of CEDEL
participants or Euroclear participants. The sale proceeds will be available to
the DTC seller on the settlement date. Thus, to the DTC participant a
cross-market transaction will settle no differently than a trade between two
DTC participants.
Trading between CEDEL or Euroclear Seller and DTC Purchaser. Due to time
zone differences in their favor, CEDEL and Euroclear participants may employ
their customary procedures to transactions in which the beneficial interest in
the Global Securities is to be transferred by the respective clearing system,
through Citibank or Morgan, to a DTC participant. The seller will send
instructions to CEDEL or Euroclear through a participant at least one business
day prior to settlement. In these cases, CEDEL or Euroclear will instruct
Citibank or Morgan, as appropriate, to deliver the beneficial interest in the
Global Securities to the DTC participant's account against payment. Payment
will include interest accrued on the beneficial interests in the Global
Securities from and
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including the last coupon payment date to and excluding the settlement date on
the basis on which interest is calculated on the Global Securities. For
transactions settling on the 31st of the month, payment will include interest
accrued to and excluding the first day of the following month. The payment will
then be reflected in the account of the CEDEL or Euroclear participant the
following day, and receipt of the cash proceeds in the CEDEL or Euroclear
participant's account would be back-valued to the value date (which would be the
preceding day, when settlement occurred in New York). Should the CEDEL or
Euroclear participant have a line of credit with its respective clearing system
and elect to be in debit in anticipation of receipt of the sale proceeds in its
account, the back-valuation will extinguish any overdraft charges incurred over
that one-day period. If settlement is not completed on the intended value date
(that is, the trade fails), receipt of the cash proceeds in the CEDEL or
Euroclear participant's account would instead be valued as of the actual
settlement date.
Finally, day traders that use CEDEL or Euroclear and that purchase
beneficial interests in Global Securities from DTC participants for credit to
CEDEL participants or Euroclear participants should note that these trades
would automatically fail on the sale side unless affirmative action were taken.
At least three techniques should be readily available to eliminate this
potential problem:
(1) borrowing through CEDEL or Euroclear for one day (until the
purchase side of the day trade is reflected in their CEDEL or Euroclear
accounts) in accordance with the clearing system's customary procedures;
(2) borrowing beneficial interests in the Global Securities in the
U.S. from a DTC participant no later than one day prior to settlement,
which would give beneficial interests in the Global Securities sufficient
time to be reflected in the appropriate CEDEL or Euroclear account in
order to settle the sale side of the trade; or
(3) staggering the value dates for the buy and sell sides of the
trade so that the value date for the purchase from the DTC participant is
at least one day prior to the value date for the sale to the CEDEL
participant or Euroclear participant.
Although the DTC, CEDEL and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of beneficial interests in Global
Securities among participants of the DTC, CEDEL and Euroclear, they are under
no obligation to perform or continue to perform such procedures and such
procedures may be discontinued at any time.
CERTAIN U.S. FEDERAL INCOME TAX DOCUMENTATION REQUIREMENTS
A beneficial owner of Global Securities holding securities, directly or
indirectly, through CEDEL or Euroclear (or through DTC if the holder has an
address outside the U.S.) will be subject to the 30% U.S. withholding tax that
generally applies to payments of interest (including original issue discount)
on registered debt issued by U.S. persons, unless (i) each clearing system,
bank or other financial institution that holds customers' securities in the
ordinary course of its trade or business in the chain of intermediaries between
such beneficial owner and the U.S. entity required to withhold tax complies
with applicable certification requirements, and (ii) such beneficial owner
takes one of the following steps to obtain an exemption or reduced tax rate:
Exemption for non-U.S. persons (Form W-8). Non-U.S. persons that
are beneficial owners (other than a beneficial owner that owns actually or
constructively 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote or a controlled foreign
corporation that is related to the Company through stock ownership) can
obtain a complete exemption from the withholding tax by filing a properly
completed Form W-8 (Certificate of Foreign Status).
Exemption for non-U.S. persons with effectively connected income
(Form 4224). A non-U.S. person, including a non-U.S. corporation or bank
with a U.S. branch, that is a beneficial owner and for which the interest
income is effectively connected with its conduct of a trade or business in
the United States, can obtain an exemption from the withholding tax by
filing a properly completed Form 4224
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(Exemption from Withholding of Tax on Income Effectively Connected with
the Conduct of a Trade or Business in the United States).
Exemption or reduced rate for non-U.S. persons resident in treaty
countries (Form 1001). Non-U.S. persons that are beneficial owners that
are entitled to the benefits of an income tax treaty with the United
States can obtain an exemption or reduced tax rate (depending on the
treaty terms) by filing a properly completed Form 1001 (Ownership,
Exemption or Reduced Rate Certificate). If the treaty provides only for a
reduced rate, withholding tax will be imposed at that rate unless the
filer alternatively files Form W-8. Form 1001 may be filed by the
beneficial owner or the beneficial owner's agent.
Exemption for U.S. Persons (Form W-9). U.S. persons can obtain a
complete exemption from the withholding tax by filing a properly completed
Form W-9 (Request for Taxpayer Identification Number and Certification).
U.S. FEDERAL INCOME TAX REPORTING PROCEDURE
The beneficial owner of the Global Security or, in the case of a Form 1001
or a Form 4224 filer, his agent, files by submitting the appropriate form to
the entity through whom it directly holds the Global Security. For example, if
the beneficial owner is listed directly on the books of Euroclear or CEDEL as
the holder of the Debt Security, the IRS Form must be provided to Euroclear or
CEDEL, as the case may be. Each person through which a Debt Security is held
must submit, on behalf of the beneficial owner, the IRS Form (or in certain
cases a copy thereof) under applicable procedures to the person through which
it holds the Debt Security, until the IRS Form is received by the U.S. person
who would otherwise be required to withhold U.S. federal income tax from
interest on the Debt Security. For example, in the case of Debt Securities
held through Euroclear or CEDEL, the IRS Form (or a copy thereof) must be
received by the U.S. depositary of such clearing agency. Applicable procedures
include, if a beneficial owner of the Debt Security provides an IRS Form W-8 to
a securities clearing organization, bank or other financial institution (a
"financial institution") that holds the Debt Security in the ordinary course of
its trade or business on the owner's behalf, that such financial institution
certify to the person otherwise required to withhold U.S. federal income tax
from such interest, under penalties of perjury, that such statement has been
received from the beneficial owner by it or by a financial institution between
it and the beneficial owner and that it furnish the payor with a copy thereof.
As used in this section on tax documentation requirements, the term "U.S.
person" means (i) a citizen or resident of the United States, (ii) a
corporation or partnership organized in or under the laws of the United States
or any State thereof or (iii) an estate or trust the income of which is
includable in gross income for U.S. tax purposes, regardless of its source.
This summary does not deal with all aspects of U.S. income tax and
withholding that may be relevant to foreign beneficial owners of the Global
Securities, including special categories of foreign investors who may not be
eligible for exemptions from U.S. withholding tax. Investors are advised to
consult their own tax advisors for specific tax advice concerning their holding
and disposing of beneficial interests in the Global Securities. Any additional
requirements, if applicable, will be set forth in the Prospectus Supplement.
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities will be
passed upon for the Company by P. Bruce Borghardt, Esq., General Counsel -
Corporate Development of the Company and for any underwriters or agents by a
firm named in the Prospectus Supplement relating to a particular issue of Debt
Securities.
EXPERTS
The consolidated financial statements and schedule of the Company as of
December 31, 1995 and 1994, and for each of the years in the three-year period
ended December 31, 1995, have been audited by Arthur Andersen
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LLP, independent public accountants, as indicated in their report with respect
thereto, and are included in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, and are incorporated herein by reference,
in reliance upon the authority of such firm as experts in accounting and
auditing in giving said reports.
The consolidated statements of operations, shareholders' equity and cash
flows of IDB for the year ended December 31, 1993 and the related financial
statement schedule (such financial statements and financial statement schedule
have not been separately included herein or incorporated by reference) have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference from WorldCom's Annual Report
on Form 10-K for the year ended December 31, 1995, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The combined financial statements of WilTel Network Services, as of
December 31, 1994 and 1993 and for the years then ended, incorporated by
reference in this registration statement, have been audited by Ernst & Young
LLP, independent auditors, to the extent indicated in their report thereon,
also incorporated by reference in this registration statement. Such combined
financial statements are incorporated by reference herein in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The consolidated financial statements of MFS as of December 31, 1995 and
1994 and for each of the three years in the period ended December 31, 1995,
included in WorldCom's Current Report on Form 8-K/A dated August 25, 1996
(filed November 4, 1996) and incorporated by reference into this registration
statement, have been incorporated in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given upon the authority of that firm
as experts in accounting and auditing.
The consolidated financial statements of UUNET as of December 31, 1995 and
1994 and for each of the three years in the period ended December 31, 1995,
included in WorldCom's Current Report on Form 8-K/A dated August 25, 1996
(filed November 4, 1996) and incorporated by reference into this registration
statement, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
23
<PAGE> 25
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses (other than underwriting
discounts and commissions), which other than the SEC registration fee are
estimates, payable by the Company in connection with the sale and distribution
of the securities registered hereby:
<TABLE>
<S> <C>
SEC registration fee ............ $ 909,091
Printing expenses ............... $ 30,000
Blue Sky fees and expenses ...... $ 15,000
Trustee's fees and expenses ..... $ 20,000
Accountants' fees and expenses .. $ 15,000
Legal fees and expenses ......... $ 100,000
Miscellaneous ................... $ 5,000
----------
Total ........................... $1,094,091
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14-2-202(b)(4) of the Georgia Business Corporation Code (the
"Georgia Code") provides that a corporation's articles of incorporation may
include a provision that eliminates or limits the personal liability of
directors for monetary damages to the corporation or its shareholders for
breach of their duty of care and other duties as directors; provided, however,
that the Section does not permit a corporation to eliminate or limit the
liability of a director for appropriating, in violation of his duties, any
business opportunity of the corporation, engaging in intentional misconduct or
a knowing violation of law, obtaining an improper personal benefit, or voting
for or assenting to an unlawful distribution (whether as a dividend, stock
repurchase or redemption, or otherwise) as provided in Section 14-2-832 of the
Georgia Code. Section 14-2-202(b)(4) also does not eliminate or limit the
rights of the Company or any shareholder to seek an injunction or other
nonmonetary relief in the event of a breach of a director's duty to the
corporation and its shareholders. Additionally, Section 14-2-202(b)(4) applies
only to claims against a director arising out of his role as a director, and
does not relieve a director from liability arising from his role as an officer
or in any other capacity.
The provisions of Article Ten of the Company's Second Amended and Restated
Articles of Incorporation are similar in all substantive respects to those
contained in Section 14-2-202(b)(4) of the Georgia Code as outlined above.
Article Nine further provides that the liability of directors of the Company
shall be limited to the fullest extent permitted by amendments to Georgia law.
Sections 14-2-850 to 14-2-859, inclusive, of the Georgia Code govern the
indemnification of directors, officers, employees, and agents. Section
14-2-851 of the Georgia Code permits indemnification of a director of the
Company for liability incurred by him in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including, subject to certain limitations,
civil actions brought as derivative actions by or in the right of the Company)
in which he is made a party by reason of being a director of the Company and
for directors who, at the request of the Company, act as directors, officers,
partners, trustees, employees or agents of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The Section permits indemnification if the director acted in a
manner he believed in good faith to be in or not opposed to the best interest
of the Company and, in addition, in criminal proceedings, if he had no
reasonable cause to believe his conduct was unlawful. If the required standard
of conduct is met, indemnification may include judgments, settlements,
penalties, fines or reasonable expenses (including attorneys' fees)
incurred with respect to a proceeding. However, if the director is adjudged
liable to the Company in a derivative action
II-1
<PAGE> 26
or on the basis that personal benefit was improperly received by him, the
director is not entitled to indemnification by the corporation; provided that
the director may be entitled to indemnification for reasonable expenses as
determined by a court in accordance with the provisions of Section 14-2-854, or
unless the Company's Second Amended and Restated Articles of Incorporation or
Bylaws, or a contract or resolutions approved by the Company's shareholders
pursuant to Section 14-2-856, authorizes indemnification.
Section 14-2-852 of the Georgia Code provides that unless limited by the
articles of incorporation, directors who are successful with respect to any
claim brought against them, which claim is brought because they are or were
directors of the Company, are entitled to mandatory indemnification against
reasonable expenses incurred in connection therewith. Conversely, if the
charges made in any action are sustained, the determination of whether the
required standard of conduct has been met will be made, in accordance with the
provisions of Section 14-2-855 of the Georgia Code, as follows: (i) by the
majority vote of a quorum of the members of the board of directors not a party
to such action at that time, (ii) if a quorum cannot be obtained, by a
committee thereof duly designated by the board of directors, consisting of two
or more directors not a party to such action at that time, (iii) by duly
selected special legal counsel, or (iv) by the shareholders, but, in such
event, the shares owned by or voted under the control of directors who are at
the time parties to the proceeding may not be voted.
Section 14-2-857 of the Georgia Code provides that an officer of the
Company (but not an employee or agent generally) who is not a director has the
mandatory right of indemnification granted to directors under Section 14-2-852,
as described above. In addition, the Company may, as provided by the Company's
Second Amended and Restated Articles of Incorporation, Bylaws, general or
specific actions by its board of directors, or by contract, indemnify and
advance expenses to an officer, employee or agent who is not a director to the
extent that such indemnification is consistent with public policy.
The indemnification provisions of Article X of the Company's Bylaws and
Article Twelve of the Company's Second Amended and Restated Articles of
Incorporation are consistent with the foregoing provisions of the Georgia Code.
However, the Company's Second Amended and Restated Articles of Incorporation
prohibit indemnification of a director who did not believe in good faith that
his actions were in, or not contrary to, the Company's best interests. The
Company's Bylaws extend the indemnification available to officers under the
Georgia Code to employees and agents.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to such provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
The form of Underwriting Agreement Standard Provisions filed as Exhibit
1.1 to this Registration Statement provides for the mutual indemnification of
the Company and the underwriters, if any as may be named therein, their
respective controlling persons, director and certain of their officers, against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended.
ITEM 16. EXHIBITS
See Exhibit Index.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE> 27
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(6) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 28
(7) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-4
<PAGE> 29
SIGNATURES
Pursuant to the requirements of the Securities Act the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jackson, State of Mississippi, on January 31, 1997.
WORLDCOM, INC.
By: /s/ Bernard J. Ebbers
----------------------------------
Bernard J. Ebbers
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Bernard J. Ebbers, Scott D. Sullivan and Charles T. Cannada and each of them
(with full power to each of them to act alone), his or her true and lawful
attorneys in fact and agents for him or her and on his or her behalf and in his
or her name, place and stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with exhibits and any and all other documents
filed with respect thereto, with the Securities and Exchange Commission (or any
other governmental or regulatory authority), granting unto said attorneys, and
each of them, full power and authority to do and to perform each and every act
and thing requisite and necessary to be done in and about the premises in order
to effectuate the same as fully to all intents and purposes as he or she might
or could do if personally present, hereby ratifying and confirming all that
said attorneys in fact and agents, or any of them, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ Carl J. Aycock
- -------------------------- Director January 31, 1997
Carl J. Aycock
/s/ Max E. Bobbitt
- -------------------------- Director January 31, 1997
Max E. Bobbitt
/s/ R. Douglas Bradbury
- -------------------------- Director January 31, 1997
R. Douglas Bradbury
/s/ James Q. Crowe
- -------------------------- Director January 31, 1997
James Q. Crowe
</TABLE>
II-5
<PAGE> 30
<TABLE>
<S> <C> <C>
Director, President and Chief
/s/ Bernard J. Ebbers Executive Officer (Principal
- -------------------------- Executive Officer) January 31, 1997
Bernard J. Ebbers
/s/ Francesco Galesi
- -------------------------- Director January 31, 1997
Francesco Galesi
/s/ Richard R. Jaros
- -------------------------- Director January 31, 1997
Richard R. Jaros
/s/ Stiles A. Kellett, Jr.
- -------------------------- Director January 31, 1997
Stiles A. Kellett, Jr.
/s/ David C. McCourt
- -------------------------- Director January 31, 1997
David C. McCourt
/s/ John A. Porter
- -------------------------- Director January 31, 1997
John A. Porter
/s/ Walter Scott, Jr.
- -------------------------- Director January 31, 1997
Walter Scott, Jr.
/s/ John W. Sidgmore
- -------------------------- Director January 31, 1997
John W. Sidgmore
Director (Principal Financial
/s/ Scott D. Sullivan Officer and Principal
- -------------------------- Accounting Officer) January 31, 1997
Scott D. Sullivan
/s/ Lawrence C. Tucker
- -------------------------- Director January 31, 1997
Lawrence C. Tucker
/s/ Michael B. Yanney
- -------------------------- Director January 31, 1997
Michael B. Yanney
</TABLE>
II-6
<PAGE> 31
WORLDCOM, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
1.1 Form of Underwriting Agreement Standard Provisions for Debt Securities,
with form of Terms Agreement
4.1 Form of Senior Indenture between the Company and one or more commercial
banks to be named, as trustee (the "Senior Indenture")
4.2 Form of Subordinated Indenture between the Company and one or more
commercial banks to be named, as trustee (the "Subordinated Indenture")
4.3* Form of Senior Debt Security
4.4* Form of Subordinated Debt Security
5.1 Opinion of Legal Counsel
12.1 Statement regarding Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Coopers & Lybrand L.L.P.
23.5 Consent of Arthur Andersen LLP
23.6 Consent of Legal Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included in Signature Page)
25.1* Statement of Eligibility of Trustee on Form T-1 with respect to the
Senior Indenture
25.2* Statement of Eligibility of Trustee on Form T-1 with respect to the
Subordinated Indenture
</TABLE>
- -------------------
* To be filed by amendment or incorporated by reference to the extent applicable
in connection with an offering.
II-7
<PAGE> 1
EXHIBIT 1.1
WORLDCOM, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
________ __, 1997
From time to time, WorldCom, Inc., a Georgia corporation (the
"Company"), may enter into one or more agreements that provide for the sale of
designated securities to the several Underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
agreement (a "Terms Agreement"). The Terms Agreement, including the provisions
incorporated therein by reference, is herein referred to as the "Underwriting
Agreement". Unless otherwise defined herein, terms defined in the Terms
Agreement are used herein as therein defined. A form of Terms Agreement is
attached hereto as Exhibit A.
The Company proposes to issue from time to time debt
securities to be issued pursuant to the provisions of (i) an indenture relating
to Senior Debt Securities, dated as of _______________, between the Company
and _______________________, as Trustee (as supplemented or amended from time
to time, the "Senior Indenture"), or (ii) an indenture relating to Subordinated
Debt Securities, dated as of _______________, between the Company and
_________________, as Trustee (as supplemented or amended from time to time,
the "Subordinated Indenture"). The Terms Agreement will specify whether the
debt securities being offered are Senior Debt Securities or Subordinated Debt
Securities and the indenture pursuant to which such securities are being issued
(referred to herein as the ''Indenture").
The debt securities will have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
terms and other terms. Any such debt securities are herein sometimes referred
to individually as the "Offered Securities" and collectively as the
"Securities".
The term "you" or "your" as used herein, unless the context
otherwise requires, shall mean such of the parties to whom this Underwriting
Agreement is addressed as are named in the applicable Terms Agreement. Each
offering of Securities will be made through one or more of you or through an
underwriting syndicate managed by one or more of you.
The Company has filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(herein referred to collectively as the "Act"), a registration statement (File
No. 333-______) on Form S-3, including a prospectus relating to the
Securities, and has filed or proposes to file with the Commission a prospectus
supplement or supplements specifically relating to the Offered Securities
pursuant to Rule 424 under the Act in the form furnished by the Company to the
Manager or Managers named in the Terms Agreement (the "Manager") or, to the
extent not completed at the time of execution of the Terms Agreement, in such
form as the Company and the Manager shall have agreed to at such time. The
term Registration Statement means the registration statement as amended to the
date of the Terms Agreement. The term Basic Prospectus means the prospectus
included in the Registration
1
<PAGE> 2
Statement. The term Prospectus means the Basic Prospectus together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities in the form first used to
confirm sales of the Offered Securities. The term preliminary prospectus means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include, in each case, the material, if any, incorporated by
reference therein.
The Company and the Underwriters agree as follows:
SECTION 1. Representations and Warranties. The Company
represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not, as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or omitted
from the Registration Statement, or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Manager specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus (or any supplement thereto) or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualification (Form
T- 1) under the Trust Indenture Act.
(c) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any governmental
agency or body that prevents the issuance of the Offered Securities, suspends
the effectiveness of the Registration Statement, prevents or suspends the use
of any preliminary prospectus, or suspends the sale of the Offered Securities
in any jurisdiction referred to in Section 4(h) below; provided, however, that
to the extent this
2
<PAGE> 3
representation relates to state securities or "blue sky" laws and laws of
jurisdictions other than the United States and its political subdivisions, it
shall be limited to the knowledge of the Company. No injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction has been issued and served on the Company or any of the
Subsidiaries (as defined in Section 1(e) below) with respect to the Company or
any of the Subsidiaries that would prevent or suspend the issuance or sale of
the Offered Securities, the effectiveness of the Registration Statement, or the
use of any preliminary prospectus in any jurisdiction referred to in Section
4(h) below.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as set forth in the Prospectus, neither the Company nor any of the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, which are
material to the Company and the Subsidiaries taken as a whole, nor entered into
any material transaction not in the ordinary course of business, and there has
not been, singularly or in the aggregate, any material adverse change, in the
properties, business, results of operations, financial condition, affairs or
business prospects of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Change"). Without limiting the foregoing, neither the
Company nor any of its Subsidiaries has sustained since the date of the latest
audited financial statements included, or incorporated by reference, in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as set forth in the Prospectus, there has not been
any material change in the capital stock or long-term debt of the Company or
any of the Subsidiaries.
(e) The Subsidiaries of the Company listed on Exhibit C
hereto (individually a "Subsidiary" and collectively, the "Subsidiaries") are
the Significant Subsidiaries of the Company (within the meaning of Rule 405
under the Act). Each of the Company and the Subsidiaries (x) has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of organization, (y) has the requisite corporate power
and authority to carry on its business as it is currently being conducted and
as described in the Prospectus, and to own, lease and operate its properties
and (z) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the operation, ownership or leasing of
property or the conduct of its business requires such qualification, except
where any failure to be so qualified would not, singularly or when aggregated
with failures to be qualified elsewhere, have a material adverse effect on the
properties, business, results of operations, financial condition, affairs or
prospects of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"). The Company has the requisite power and authority to
authorize the offering of the Offered Securities to be sold by it, to execute,
deliver and perform this Underwriting Agreement and to issue, sell and deliver
the Offered Securities to be sold by it.
(f) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and are fully paid and non-
assessable. All of the issued and outstanding
3
<PAGE> 4
shares of capital stock of each Subsidiary have been duly and validly
authorized and issued, are fully paid and non- assessable and (except as set
forth or contemplated in the Prospectus) are owned, directly or through
Subsidiaries, by the Company, free and clear of any liens, claims or
encumbrances ("Liens"). There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of any Subsidiary, except as set forth or
contemplated in the Prospectus.
(g) The Company has all requisite corporate power and
authority to execute, issue and deliver the Offered Securities and to execute
and deliver the Indenture and to incur and perform its obligations provided for
therein.
(h) This Underwriting Agreement has been duly authorized
and validly executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms (assuming the due execution and delivery of the Terms
Agreement by the Manager on behalf of the several Underwriters), except to the
extent enforceability of any indemnification provisions may be limited by
public policy.
(i) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, and constitutes the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity and except to the extent
enforceability of any indemnification provisions may be limited by public
policy.
(j) The Offered Securities have been duly authorized,
and, when executed by the Company and authenticated by the Trustee in
accordance with the terms of the Indenture, and delivered to and duly paid for
by the Underwriters in accordance with the terms of this Underwriting Agreement
and the Terms Agreement, will be entitled to the benefits of the Indenture and
will conform in all material respects to the description thereof in the
Prospectus and will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with the terms hereof, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity and except to the extent
enforceability of any indemnification provisions may be limited by public
policy.
(k) The execution and delivery of this Underwriting
Agreement, the issuance and sale of the Offered Securities, the performance by
the Company of this Underwriting Agreement and the Indenture, and the
consummation of the other transactions herein contemplated will not (x)
conflict with or result in a breach or violation of any of the respective
charters or by-laws of the Company or any of the Subsidiaries or (y) after
giving effect to the waivers and consents obtained on or prior to the date
hereof, if any, conflict with or result in a breach or violation of any term or
provision of, constitute a default or cause an acceleration of
4
<PAGE> 5
any obligation under, or result in the imposition or creation of (or the
obligation to create or impose) a Lien with respect to, any bond, note,
debenture or other evidence of indebtedness or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them is bound, or to which any
properties of the Company or any of the Subsidiaries is subject, or (z)
contravene any order of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties, or violate or conflict with any statute, rule or regulation or
administrative or court decree applicable to the Company or any of the
Subsidiaries, or any of their respective properties. No authorization,
approval or consent or order of, or filing, registration or qualification with,
any court or governmental body or agency is required in connection with the
transactions contemplated by this Underwriting Agreement, except as may be
required by and made with or obtained from the National Association of
Securities Dealers, Inc. (the "NASD") or state securities or "blue sky" laws
or regulations or have been obtained and made under the Act.
(l) There is no action, suit or proceeding before or by
any court, arbitrator or governmental official, agency or body, domestic or
foreign, pending against or affecting the Company or any of the Subsidiaries,
or any of their respective properties, that is required to be disclosed in the
Prospectus and is not so disclosed, or that, if determined adversely, is
reasonably expected to affect adversely the issuance of the Offered Securities
or in any manner draw into question the validity of this Underwriting Agreement
or the Offered Securities or to result, singularly or when aggregated with
other pending actions and actions known to be threatened, in a Material Adverse
Effect, or that is reasonably expected to materially and adversely affect the
consummation of this Underwriting Agreement or the transactions contemplated
hereby, and to the best of the Company's knowledge, no such proceedings are
contemplated or threatened. No contract or document of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement is not so described or filed.
(m) The firm of accountants that has certified or shall
certify the applicable consolidated financial statements and supporting
schedules of the Company filed or to be filed as part of the Registration
Statement or the Prospectus are independent public accountants with respect to
the Company and its subsidiaries, as required by the Act. The consolidated
historical statements and any pro forma information, together with related
schedules and notes, if any, included in the Registration Statement or the
Prospectus comply as to form in all material respects with the requirements of
the Act. Such historical financial statements fairly present the consolidated
financial position of the Company and its Subsidiaries at the respective dates
indicated and the results of their operations and their cash flows for the
respective periods indicated, in accordance with generally accepted accounting
principles ("GAAP"), except as otherwise expressly stated therein, as
consistently applied throughout such periods. Such pro forma information has
been prepared on a basis consistent with such historical financial statements,
except for the pro forma adjustments specified therein, and gives effect to
assumptions made on a reasonable basis and fairly presents and gives effect to
the transactions described therein pertaining to such pro forma information.
The other financial and statistical information and data included in the
Prospectus and in the Registration Statement, historical and
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<PAGE> 6
pro forma, are, in all material respects, accurately presented and prepared on
a basis consistent with such financial statements and the books and records of
the Company.
(n) Each of the Company and the Subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses, authorizations,
or other approvals (each, an "Authorization") of and from, and has made all
declarations and filings with, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, necessary or required to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or file any such
Authorizations would not, singularly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. All such Authorizations are in
full force and effect with respect to the Company and the Subsidiaries, and the
Company and the Subsidiaries are in compliance in all material respects with
the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto.
(o) Except as disclosed in the Prospectus, no holder of
any security of the Company has or will have any right to require the
registration of such security by virtue of the filing of the Registration
Statement or any transactions contemplated by this Underwriting Agreement other
than any such right that has been expressly waived in writing. No holder of
any of the outstanding shares of capital stock of the Company or other person
is entitled to preemptive or other rights to subscribe for the Offered
Securities.
(p) The Company has not (i) taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Offered Securities or (ii) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases of, the
Offered Securities, or (iii) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(q) If the Offered Securities are convertible into shares
of the Company's Common Stock, the shares of Common Stock to be issued upon
conversion of the Offered Securities pursuant to the Indenture have been duly
authorized and reserved for issuance, and are sufficient in number for such
conversion, and, when so issued upon such conversion will be duly authorized,
validly issued, fully paid and nonassessable.
SECTION 2. Delivery and Payment. The several
commitments of the Underwriters to purchase, and the obligation of the Company
to sell, Securities pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment for the Offered Securities shall be made by the
several Underwriters of the Offered Securities through the Manager by either
(i) certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds, (ii) a wire transfer in
Federal Funds or other same day funds provided that the Company shall reimburse
the
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Manager for the expense (including overnight interest expense) of such funding,
or (iii) by such other means as may be specified in the Terms Agreement, at the
time and place set forth in the Terms Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations as the Manager
shall request not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery with respect to the
Offered Securities are herein referred to as the Closing Date.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Offered Securities
from the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing Time, for the
accounts of the Underwriters, a fee equal to that percentage of the principal
amount of Offered Securities for which Delayed Delivery Contracts are made at
Closing Time as is specified in the applicable Terms Agreement. Payment for
such compensation shall be made by certified or official bank check in New York
Clearing House funds or by such other means as may be specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional
investors of the types set forth in the Prospectus. At Closing Time the
Company will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Securities per Delayed Delivery Contract specified
in the applicable Terms Agreement) with all purchasers proposed by the
Underwriters and previously approved by the Company as provided below, but not
for an aggregate principal amount of Offered Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have
any responsibility for the validity or performance of Delayed Delivery
Contracts.
You are to submit to the Company, within a reasonable time
prior to Closing Time, the names of any institutional investors with which it
is proposed that the Company will enter into Delayed Delivery Contracts and the
principal amount of Offered Securities to be purchased by each of them, and the
Company will advise you, within a reasonable time after receipt of such names
and prior to Closing Time, of the names of the institutions with which the
making of Delayed Delivery Contracts is reasonably objected to by the Company
and the principal amount of Offered Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Offered Securities agreed to be
purchased by the respective Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the principal amount of Offered Securities
covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a
written notice delivered by you to the Company; provided, however, that the
total principal amount of Offered Securities to be purchased by all
Underwriters shall be the total amount of Offered Securities covered by the
applicable Terms Agreement, less the principal amount of Offered Securities
covered by Delayed Delivery Contracts.
SECTION 3. Offering by Underwriters. The Company is
advised by the Manager that the Underwriters propose to make a public offering
of their respective portions of the Offered Securities as soon after this
Underwriting Agreement and a Terms Agreement are
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entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
SECTION 4. Agreements. The Company agrees with the
several Underwriters, and in the case of paragraph (g) of this Section 4, the
Underwriters agree with the Company:
(a) The Company will use its best efforts to cause the
Registration Statement, and any amendment thereof, to be declared effective by
the Commission. Prior to the termination of the offering of the Offered
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus without the prior consent of the
Manager, which consent shall not be unreasonably withheld. Subject to the
foregoing sentence, if filing of the Prospectus is required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Manager of such timely filing. The Company will promptly
advise the Manager (i) when the Registration Statement, and any amendment
thereto, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the offering of
the Offered Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the Company
becoming aware of the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) As soon as practicable, the Company will make
generally available to its security holders and to the Manager, an earnings
statement or statements of the Company and its Subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(c) To furnish the Manager, without charge, two manually
or facsimile signed copies of the Registration Statement (including exhibits
thereto and documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated therein by reference, and any supplements and amendments
thereto as the Manager may reasonably request. The Company agrees to timely
file the Prospectus pursuant to Rule 424 and to provide the Manager with
evidence of such filing. The terms "supplement" and "amendment" or "amend" as
used in this Underwriting Agreement shall include all documents subsequently
filed by the Company with the Commission pursuant to the Exchange Act that are
deemed to be incorporated by reference in the Prospectus.
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<PAGE> 9
(d) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement and to file no such proposed amendment or
supplement to which the Manager reasonably objects in writing; provided that
the foregoing shall not apply to amendments or supplements that relate to
securities registered under the Registration Statement that are not Offered
Securities.
(e) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the rules thereunder, the Company will promptly prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 4,
an amendment or supplement which will correct such statement or omission or
effect such compliance.
(f) The Company will cooperate with the Manager and
counsel for the Manager in connection with endeavoring to obtain qualification
of the Offered Securities for sale under the laws of such jurisdictions as the
Manager may designate, will maintain such qualifications in effect so long as
required for the distribution of the Offered Securities, and will pay the fee
of the NASD, if any, in connection with its review of the offering; provided,
however, that the Company shall not be required to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(g) Each Underwriter agrees with the Company that it has
not offered or sold, and agrees not to offer or sell, any of the Securities,
directly or indirectly, in Canada in contravention of the securities laws of
Canada or any province or territory thereof and, without limiting the
generality of the foregoing, represents that any offer of the Securities in
Canada will be made only pursuant to an exemption from the requirement to file
a prospectus in the province or territory of Canada in which such offer is
made. Each Underwriter further agrees to send to any dealer who purchases from
it any of the Securities a notice stating in substance that, by purchasing such
Securities, such dealer represents and agrees that it has not offered or sold,
and will not offer or sell, directly or indirectly, any of such Securities in
Canada or to, or for the benefit of, any resident of Canada in contravention of
the securities laws of Canada or any province or territory thereof and that any
offer of Securities in Canada will be made only pursuant to an exemption from
the requirement to file a prospectus in the province or territory of Canada in
which such offer is made, and that such dealer will deliver to any other dealer
to whom it sells any of the Securities a notice containing substantially the
same statement as is contained in this sentence.
(h) During the period beginning on the date of this
Underwriting Agreement and continuing to and including the Closing Date or such
other date as may be specified in the Terms Agreement, not to offer, sell,
contract to sell or otherwise dispose of any securities of the
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<PAGE> 10
Company that are similar to the Offered Securities (other than the Offered
Securities) without the prior written consent of the Manager. The foregoing
shall not restrict the Company from borrowings under revolving credit
agreements and lines of credit and issuances of commercial paper or interest
rate swaps.
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the Offered
Securities hereunder are subject to the following conditions:
(a) That, at the Closing Date, the Company shall have
furnished to the Manager an opinion of counsel for the Company, addressed to
the Manager and dated the Closing Date, to the effect of Exhibit D.
(b) That, at the Closing Date, the Manager shall have
received an opinion of counsel for the Underwriters, addressed to the Manager
and dated the Closing Date, to the effect of Exhibit E.
(c) That the representations and warranties of the
Company in this Underwriting Agreement are true and correct in all material
respects on the Closing Date with the same effect as if made on the Closing
Date and the Company shall have complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(d) That no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened.
(e) That subsequent to the execution and delivery of this
Underwriting Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given to the Company
of (A) any intended or potential downgrading or (B) any review or possible
change that does not indicate the direction of a possible change, in the rating
accorded any of the Company's securities by either of Standard & Poor's Ratings
Group or Moody's Investors Service, Inc.
(f) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(g) That, at the Closing Date, there shall not have been
(i) any change or decrease specified in the letter or letters referred to in
paragraph (i) of this Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and the Subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the Manager, so material
and adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Securities as
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contemplated by the Registration Statement and the Prospectus (exclusive of any
supplement thereto).
(h) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or accounting officer
of the Company, each in his official capacity as an officer of the Company and
not as an individual, dated the Closing Date, stating that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplement to the Prospectus and this Underwriting Agreement and to the
effect of subparagraphs (c) through (g) of this Section 5.
(i) That, at the date on which the Terms Agreement is
executed and delivered and at the Closing Date, the Company's independent
public accountants shall have furnished to the Manager a letter or letters,
dated respectively as of the date of the applicable Terms Agreement (unless
otherwise specified therein) and the Closing Date, in form and substance
satisfactory to the Manager, to the effect of Exhibit F.
(j) That the Company shall have delivered to the Manager
and its counsel such documents as they may reasonably request relating to the
issuance and sale of the Offered Securities or otherwise related to the matters
contemplated hereby.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Manager and its
counsel, this Underwriting Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, each Closing Date by
the Manager. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
SECTION 6. Reimbursement of Underwriters' Expenses. If
the sale of the Offered Securities provided for herein is not consummated for
any reason (other than a breach by the Underwriters of their obligations
hereunder), the Company will reimburse the Underwriters severally, upon demand,
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Offered Securities. If the sale of
the Offered Securities provided for herein is not consummated because of a
breach of an Underwriter or Underwriters of their obligations hereunder, the
Company will be responsible to reimburse the non-breaching Underwriters
severally, upon demand, for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Offered Securities. If
the sale of the Offered Securities provided for herein is consummated, the
Underwriters will be responsible for all out-of-pocket expenses (other than for
those relating to blue sky filings and filings in Canada or any Provinces
thereof and with the NASD and related fees and disbursements of their counsel)
that shall have been incurred by them in connection with the purchase and sale
of the Offered Securities.
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SECTION 7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person who controls any Underwriter within the
meaning of the Act against any and all losses, claims, expenses, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
expenses. damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any Basic Prospectus or any preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage
liability or action; provided, however, (i) the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Manager specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to any Basic
Prospectus or preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Offered
Securities which are the subject thereof if such person did not receive a copy
of the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) at or prior to the
confirmation of the sale of such Offered Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such Basic Prospectus or preliminary prospectus
was corrected in the Prospectus (as so amended or supplemented). This
indemnity agreement is in addition to any liability which the Company may
otherwise have.
(b) Each of the Underwriters severally agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of the Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such
Underwriter through the Manager specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
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indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to appoint counsel satisfactory to such indemnified party to represent
the indemnified party in such action; provided, however, that if the defendants
in any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to appoint counsel to defend such action and approval by the
indemnified party of such counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (plus any local counsel), approved
by the Manager in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company on grounds of
policy or otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively, the "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus bears to
the public offering price appearing thereon and the Company is responsible for
the balance; provided, however, that (y) in no case shall any Underwriter
(except as may be provided in the agreement among underwriters relating to the
offering of the Offered Securities) be responsible for any amount in excess of
the underwriting discount applicable to the Offered Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. If the allocation provided by the immediately proceeding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only the
relative benefits referred to in the prior sentence, but also the relative
fault of the Company and of the Underwriters in
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<PAGE> 14
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of the Act, each officer of
the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (y) and (z) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
SECTION 8. Default by an Underwriter. If any one or
more Underwriters shall fail to purchase and pay for any of the Offered
Securities agreed to be purchased by such Underwriter or Underwriters
hereunder, and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Underwriting Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Offered Securities each
remaining Underwriter has agreed to purchase bears to the aggregate amount of
Offered Securities all the remaining Underwriters have agreed to purchase) the
Offered Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Offered Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Offered Securities the Underwriters agreed to purchase, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Securities, and if such
non-defaulting Underwriters do not purchase all the Offered Securities, this
Underwriting Agreement will terminate without liability to any non-defaulting
Underwriter or the Company. In the event of a default by any Underwriter as
set forth in this Section 8, the Closing Date shall be postponed for such
period, not exceeding seven days, as the Manager shall determine. Nothing
contained in this Underwriting Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any non-defaulting
Underwriter for damages occasioned by its default hereunder.
SECTION 9. Termination. This Underwriting Agreement
shall be subject to termination in the absolute discretion of the Manager, by
notice given to the Company prior to a Closing Date if prior to such time (i)
trading in the Offered Securities or in the Common Stock of the Company, par
value $.01 (the "Common Stock"), shall have been suspended by the Commission or
the National Association of Securities Dealers Automated Quotation National
Market System or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities, (iii) there shall
have occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Manager, impracticable to
market the Offered Securities, or (iv) there shall
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have been any decrease in the rating of any of the Company's debt securities or
preferred stock by any "Nationally Recognized Statistical Rating Organization"
(as defined for purposes of Rule 436(g) under the Act) or any written or public
notice given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of the
possible change.
SECTION 10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Underwriting Agreement well remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Offered Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Underwriting Agreement.
SECTION 11. Notices. All communications hereunder will
be in writing and effective only on receipt, and. if sent to the Manager, will
be mailed, delivered or telegraphed and confirmed to them, at the address
indicated in the Terms Agreement; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 515 East Amite Street, Jackson,
Mississippi 39201, to the attention of the Chief Financial Officer.
SECTION 12. Successors. This Underwriting Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any right or
obligation hereunder.
SECTION 13. Applicable Law. This Underwriting Agreement
will be governed by and construed in accordance with the substantive laws of
the State of New York.
15
<PAGE> 16
EXHIBIT A
TERMS AGREEMENT
WorldCom, Inc.
515 East Amite Street
Jackson, Mississippi 39201
__________, 199_
Dear Sirs:
We (the "Manager") understand that WorldCom, Inc., a Georgia
corporation (the "Company"), proposes to issue and sell to the several
underwriters named below (the "Underwriters") $__________ aggregate principal
amount of its __ % __________ due __________ __, ____ (the "Offered
Securities").
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell all of the Offered
Securities, and each of the Underwriters named below agrees, severally and not
jointly, to purchase the respective principal amount of Offered Securities set
forth opposite its name below, in each case at a purchase price of ___ % of the
principal amount of such securities, plus accrued interest, if any, from
__________ __, ____ to the date of payment and delivery.
<TABLE>
<CAPTION>
Principal
Amount of
Name Securities
<S> <C>
$_______________
</TABLE>
The Underwriters will pay for such Offered Securities upon
delivery thereof at the offices of_______________ at 10:00 a.m. (New York time)
on __________ __, ____, or at such other time, not later than 10:00 a.m. (New
York time), on such date as shall be jointly designated by the Underwriters and
the Company.
<PAGE> 17
The Offered Securities shall have the terms set forth in the
Prospectus dated__________ __, ____ (the "Prospectus"), and the Prospectus
Supplement dated __________ __, ____ (the "Prospectus Supplement"), including
the following:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Form and Denomination:
Senior or Subordinated:
[Other]
All communications with the Underwriters will be in writing
and effective only upon receipt, and will be mailed, delivered or telegraphed
and confirmed to them in care of [Manager's name and address].
All provisions of the document entitled WorldCom, Inc.
Underwriting Agreement Standard Provisions (Debt) dated _______________ (the
"Standard Provisions"), are herein incorporated by reference in their entirety
and shall be deemed to be a part of this agreement to the same extent as if
such provisions had been set forth in full herein.
2
<PAGE> 18
Please confirm your agreement by having an authorized officer
sign a copy of this agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[Name of Manager]
By:
----------------------------------
Name:
Title:
Acting severally on behalf of itself as
Manager and Underwriter and on behalf
of the other several Underwriters
named above.
Accepted on the date set forth above:
WORLDCOM, INC.
By:
---------------------------------
Name:
Title:
3
<PAGE> 19
EXHIBIT B
WORLDCOM, INC.
DELAYED DELIVERY CONTRACT
__________ __, ____
WorldCom, Inc.
515 East Amite Street
Jackson, Mississippi 39201
Attention: ____________________
Dear Sirs:
The undersigned hereby agrees to purchase from WorldCom, Inc.
(the "Company"), and the Company agrees to sell to the undersigned on
__________ __, ____ (the "Delivery Date"), $______________ principal amount of
the Company's [insert title of security] (the "Offered Securities"), offered by
the Company's Prospectus dated __________ __, ____ as supplemented by its
Prospectus Supplement dated __________ __, ____, receipt of which is hereby
acknowledged, at a purchase price of __ % of the principal amount thereof, plus
accrued interest from __________ __, ____, to the Delivery Date, and on the
further terms and conditions set forth in this contract.
Payment for the Offered Securities which the undersigned has
agreed to purchase on the Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds, at
the office of ____________________________, on the Delivery Date, upon delivery
to the undersigned of the Offered Securities to be purchased by the undersigned
in definitive form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic communication addressed
to the Company not less than five full business days prior to the Delivery
Date.
The obligation of the undersigned to take delivery of and make
payment for Offered Securities on the Delivery Date shall be subject only to
the conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before __________ __, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated __________ __,
____, between the Company and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Offered Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Offered Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that is investment in
the Offered Securities is not, as
<PAGE> 20
of the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject.
Promptly after completion of the sale of the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company relating to the validity and binding effect of the Offered Securities
delivered to the Underwriters in connection therewith.
By execution hereof, the undersigned represents and warrants
to the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Offered
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed
Delivery Contracts for an aggregate principal amount of Offered Securities in
excess of $__________ and that the acceptance of any Delayed Delivery Contract
is in the Company's sole discretion and, without limiting the foregoing, need
not be on a first-come, first-served basis. If this contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance on a
copy hereof and mail or deliver a signed copy hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such copy is so mailed or delivered.
2
<PAGE> 21
This Agreement shall be governed by the laws of the State of New York.
Very truly yours,
---------------------------------------
(Name of Purchaser)
By:
-----------------------------------
(Title)
-----------------------------------
-----------------------------------
-----------------------------------
Accepted as of the date first above written.
WORLDCOM, INC.
By:
----------------------------------------
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code)
---- ---------------------
<S> <C>
</TABLE>
3
<PAGE> 22
EXHIBIT C
WORLDCOM, INC.
SIGNIFICANT SUBSIDIARIES
<TABLE>
<CAPTION>
Name Jurisdiction in which Organized
---- -------------------------------
<S> <C>
</TABLE>
<PAGE> 23
EXHIBIT D
OPINION OF
COUNSEL FOR THE COMPANY
1. Each of the Company and its Subsidiaries has been
duly incorporated or formed and is validly existing in the jurisdiction of its
incorporation or formation, and has all consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities, and
all courts or other tribunals, necessary to conduct its business as described
in the Prospectus, except to the extent that the lack of such consents,
authorizations, approvals, orders, certificates or permits could not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
2. All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and are duly issued and are
fully paid and nonassessable, and have not been issued and are not owned or
held in violation of any statutory preemptive right of stockholders; to the
knowledge of such counsel after due inquiry, such shares are not held in
violation of any other preemptive right of stockholders and except as otherwise
set forth in the Registration Statement, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company either directly or through
wholly owned Subsidiaries free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other material
security interests, stockholders' agreements or voting trusts.
3. To the knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of the
Subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there is no
contract or other document of a character required to be described in the
Registration Statement or the Prospectus, or to be filed as an exhibit, which
is not described or filed as required.
4. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws of general applicability relating to
or affecting creditors' rights and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law), and except to the extent enforceability of any indemnification provisions
may be limited by public policy.
5. The Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the Underwriting Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their respective terms, and will be
entitled to the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent
<PAGE> 24
transfer, reorganization, moratorium or similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
and except to the extent enforceability of any indemnification provisions may
be limited by public policy, and all conditions precedent to the issuance of
the Offered Securities provided for in the Indenture have been complied with
and the terms of the Offered Securities have been established in conformity
with the provisions of the Indenture.
6. The Underwriting Agreement has been duly authorized
and validly executed and delivered by the Company.
7. Neither the execution and delivery of the
Underwriting Agreement, the Indenture, nor the issuance and sale of the Offered
Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result
in a breach of, or constitute a default under the certificate of incorporation
or by-laws of the Company or the terms of any agreement filed as an exhibit to
the Registration Statement, or any judgment, order or regulation known to such
counsel to be applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its Subsidiaries.
8. The statements under "Description of [Offered
Securities]" and "Underwriting" (in the Prospectus Supplement), and
"Description of Debt Securities" (in the Basic Prospectus), insofar as such
statements constitute a summary of the documents referred to therein, fairly
present the information called for with respect to such documents.
9. The Registration Statement and all post-effective
amendments thereto have become effective under the Act; any required filing of
the Prospectus, and any supplements thereto, have been made in the manner and
within the time period required by the Act and the rules thereunder; to the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that purpose have
been instituted or threatened and the Registration Statement and the Prospectus
appear on their face to have been appropriately responsive in all material
respects to the applicable requirements of the Act and the rules thereunder.
10. To the knowledge of such counsel, no consent,
approval, authorization, license, certificate, permit or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated under the terms of the Underwriting Agreement, except
such as have been obtained under the Act and such as may be required by the
Federal Communications Commission or similar state regulatory authorities or
under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by the Underwriters (as to which such
counsel need not opine) in connection with the purchase and distribution of the
Offered Securities by the Underwriters and such other approvals as have been
obtained.
11. Except as disclosed in the Prospectus, to the
knowledge of such counsel, no holders of securities of the Company have rights
to the registration of such securities under the Registration Statement.
2
<PAGE> 25
We have not ourselves checked the accuracy or completeness of,
or otherwise verified, the information furnished with respect to other matters
in the Registration Statement or Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our check and verification. On the basis
of such consideration, review and discussion, but without independent check or
verification, except as stated, we are of the opinion that (i) the Registration
Statement and Prospectus (other than the financial statements and related
schedules and other financial and statistical information contained therein, or
omitted therefrom and other than the sections of the Prospectus entitled ["Risk
Factors -- Regulation"] and ["Business -- Government Regulation and Co- carrier
Status"] as to which we are not called upon to express a belief), and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act) does
not, and on the date of the Underwriting Agreement did not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances in which they were
made, not misleading and (ii) the Prospectus (except as aforesaid) does not on
the date hereof contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and (iii)
the Registration Statement and Prospectus (other than the financial statements
and related schedules and other financial and statistical information contained
therein, or omitted therefrom and other than the sections of the Prospectus
entitled ["Risk Factors -- Regulation"] and ["Business -- Government Regulation
and Co-carrier Status"] as to which we are not called upon to express a belief)
comply as to form in all material respects with the Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder.
We are members of the Bar of the State of [New York] and our
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the Georgia Business Corporation Code.
3
<PAGE> 26
EXHIBIT E
OPINION OF
COUNSEL FOR THE UNDERWRITERS
1. The Company is a corporation validly existing and in
good standing under the laws of the State of Georgia and has corporate power to
transact the business in which it is now engaged.
2. The Underwriting Agreement, including the provisions
incorporated therein by reference, has been duly authorized, executed and
delivered by the Company.
3. The Registration Statement on Form S-3 with respect
to the Offered Securities, as amended (the "Registration Statement"), filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), has become effective and
remains in effect at this date, and the Prospectus dated ___________ __, 199_,
including all documents incorporated by reference pursuant to the requirements
of Form S-3 under the Act constituting a part thereof (the "Basic Prospectus"),
as supplemented by the prospectus supplement dated __________ __, 199_ relating
to the Offered Securities (the "Prospectus Supplement") (the Basic Prospectus
as supplemented by the Prospectus Supplement being herein referred to as the
"Prospectus"), may lawfully be used for the purposes specified in the Act in
connection with the offer and sale of the Offered Securities in the manner
therein specified.
4. The Registration Statement and the Prospectus (except
the financial statements and other financial data included therein as to which
we express no opinion) appear on their face to be appropriately responsive in
all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended, and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and to the applicable rules and regulations of the
Commission under said Acts. As to the financial statements included in the
Prospectus, we have made no examination of the Company's books of account and
we therefore express no opinion. As to the statements under "Description of
Debt Securities" in the Basic Prospectus, as supplemented by statements under
"Description of [Offered Securities]" in the Prospectus Supplement, we are of
the opinion that the statements are accurate and do not omit any material fact
required to be stated therein or necessary to make such statements, in the
light of the circumstances in which they were made, not misleading. As to
other matters we have not undertaken to determine independently the accuracy or
completeness of the statements contained in the Registration Statement or in
the Prospectus. We have, however, participated in extended conferences with
counsel for and representatives of the Company in connection with the
preparation of the Registration Statement, and we have reviewed all documents
incorporated by reference in the Prospectus pursuant to the requirements of
Form S-3 under the Act and such of the corporate records of the Company as we
deemed advisable. None of the foregoing disclosed to us any information which
gave us reason to believe that the Registration Statement or the Prospectus
(except the financial statements and other financial data included therein as
to which we express no opinion) contains on the date hereof, or on the date of
the Underwriting
<PAGE> 27
Agreement contained, any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading.
5. The Indenture has been duly authorized, executed and
delivered by the Company and conforms to the statements with respect thereto
contained in the Registration Statement and the Prospectus; is a legal, valid
and binding agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency and other laws affecting
the enforcement of creditors' rights generally; and the Indenture has been duly
qualified under the Trust Indenture Act.
6. The Offered Securities have been duly authorized,
and, when executed, authenticated and delivered by the Company in accordance
with the Indenture against payment therefor in accordance with the Underwriting
Agreement, will be legal, valid and binding obligations of the Company and will
be entitled to the benefits afforded by the Indenture; and the Offered
Securities conform in all material respects to the description thereof in the
Prospectus.
We have also examined the opinion dated the date hereof of
________, special counsel for the Company, delivered in accordance with the
provisions of Section 5 of the Underwriting Agreement, which opinion is
substantially responsive to the terms of the Underwriting Agreement.
2
<PAGE> 28
EXHIBIT F
LETTERS OF INDEPENDENT PUBLIC ACCOUNTANTS
A. We are independent certified public accountants with respect
to the Company and its Subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder.
B. In our opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective financial
statements and/or pro forma financial information) examined by us and included
in the Prospectus or the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder; to the extent
applicable, we have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro forma
financial information, prospective financial statements, selected financial
data, pro forma financial information, prospective financial statements, and/or
condensed financial statements derived from audited financial statements of the
Company for the periods specified herein, as indicated in our reports thereon,
copies of which have been furnished to the Manager.
C. The unaudited summary and selected financial information with
respect to the consolidated results of operations and financial position of the
Company for the three most recent fiscal years (or such shorter period as
applicable) included in the Prospectus agrees with the corresponding amounts
(after restatements where applicable) in the audited consolidated financial
statements for such period.
D. On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its Subsidiaries, inspection of the
minute books of the Company and its Subsidiaries since the date of the latest
audited financial statements included in the Prospectus, inquiries of officials
of the Company and its Subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as specified herein, nothing
came to our attention that caused us to believe that:
1. the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus;
<PAGE> 29
2. any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Prospectus;
3. the unaudited financial statements which were not
included in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause B were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
4. any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements;
5. as of a specified date not more than five days prior
to the date hereof, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its Subsidiaries, or any decreases
in consolidated net current assets or net assets or other items
specified by the Manager, or any increases in any items specified by
the Manager, in each case as compared with amounts shown in the latest
balance sheet included in the Prospectus, except in each case for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described herein; and
6. for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause E there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or other items specified by the Manager, or any increases
in any items specified by the Manager, in each case as compared with
the comparable period of the preceding year and with any other period
of corresponding length specified by the Manager, except in each case
for decreases or increases which the Prospectus discloses, have
occurred or may occur or which are described herein; and
E. In addition to the examination referred to in our report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (ii) and (iv)
above, we have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain
2
<PAGE> 30
amounts, percentages and financial information specified by the Manager, which
are derived from the general accounting records of the Company and its
Subsidiaries, which appear in the Prospectus, or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Manager, and have
compared certain of such amounts, percentages and financial information with
the accounting records of the Company and the subsidiaries and have found them
to be in agreement.
3
<PAGE> 1
EXHIBIT 4.1
________________________________________________________________________________
WORLDCOM, INC.
TO
[____________________________]
Trustee
____________________________
Indenture
Dated as of ___________, 1997
____________________________
Senior Debt Securities
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
RECITALS ............................................................................ 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................. 1
SECTION 101. Definitions ..................................................... 1
Act ......................................................................... 2
Additional Amounts .......................................................... 2
Affiliate ................................................................... 2
Authenticating Agent ........................................................ 2
Authorized Newspaper ........................................................ 2
Bearer Security ............................................................. 2
Board of Directors .......................................................... 2
Board Resolution ............................................................ 2
Business Day ................................................................ 3
CEDEL ....................................................................... 3
Commission .................................................................. 3
Common Stock ................................................................ 3
Company ..................................................................... 3
Company Request and Company Order ........................................... 3
Conversion Date ............................................................. 3
Conversion Event ............................................................ 3
Corporate Trust Office ...................................................... 3
Corporation ................................................................. 3
Coupon ...................................................................... 4
Currency Indexed Note ....................................................... 4
Defaulted Interest .......................................................... 4
Dollar or $ ................................................................. 4
ECU ......................................................................... 4
Election Date ............................................................... 4
Euroclear ................................................................... 4
European Communities ........................................................ 4
European Monetary System .................................................... 4
Event of Default ............................................................ 4
Exchange Rate Agent ......................................................... 4
Exchange Rate Officer's Certificate ......................................... 4
Foreign Currency ............................................................ 4
Government Obligations ...................................................... 5
Holder ...................................................................... 5
Indenture ................................................................... 5
Indexed Security ............................................................ 5
Interest .................................................................... 5
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Interest Payment Date ....................................................... 6
Market Exchange Rate ........................................................ 6
Material Subsidiary ......................................................... 6
Maturity .................................................................... 6
Officers' Certificate ....................................................... 6
Opinion of Counsel .......................................................... 7
Original Issue Discount Security ............................................ 7
Outstanding ................................................................. 7
Paying Agent ................................................................ 8
Person ...................................................................... 8
Place of Payment ............................................................ 8
Predecessor Security ........................................................ 8
Preferred Stock ............................................................. 8
Redemption Date ............................................................. 8
Redemption Price ............................................................ 9
Registered Security ......................................................... 9
Regular Record Date ......................................................... 9
Repayment Date .............................................................. 9
Repayment Price ............................................................. 9
Responsible Officer ......................................................... 9
Security .................................................................... 9
Security Register and Security Registrar .................................... 9
Special Record Date ......................................................... 9
Stated Maturity ............................................................. 9
Subsidiary .................................................................. 10
Trust Indenture Act or TIA .................................................. 10
Trustee ..................................................................... 10
United States ............................................................... 10
United States person ........................................................ 10
Valuation Date .............................................................. 10
Yield to Maturity ........................................................... 10
SECTION 102. Compliance Certificates and Opinions .................................. 10
SECTION 103. Form of Documents Delivered to Trustee ................................ 11
SECTION 104. Acts of Holders ....................................................... 11
SECTION 105. Notices, etc., to Trustee and Company ................................. 13
SECTION 106. Notice to Holders; Waiver ............................................. 13
SECTION 107. Effect of Headings and Table of Contents .............................. 14
SECTION 108. Successors and Assigns ................................................ 14
SECTION 109. Separability Clause ................................................... 15
SECTION 110. Benefits of Indenture ................................................. 15
SECTION 111. Governing Law ......................................................... 15
SECTION 112. Legal Holidays ........................................................ 15
ARTICLE TWO SECURITIES FORMS ....................................................... 15
SECTION 201. Forms of Securities ................................................... 15
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 202. Form of Trustee's Certificate of Authentication ....................... 16
SECTION 203. Securities Issuable in Global Form .................................... 16
ARTICLE THREE THE SECURITIES ....................................................... 17
SECTION 301. Amount Unlimited; Issuable in Series .................................. 17
SECTION 302. Denominations ......................................................... 21
SECTION 303. Execution, Authentication, Delivery and Dating ........................ 21
SECTION 304. Temporary Securities .................................................. 23
SECTION 305. Registration, Registration of Transfer and Exchange ................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ...................... 29
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset 30
SECTION 308. Extension of Maturity ................................................. 33
SECTION 309. Persons Deemed Owners ................................................. 35
SECTION 310. Cancellation .......................................................... 35
SECTION 311. Computation of Interest ............................................... 36
SECTION 312. Currency and Manner of Payments in Respect of Securities .............. 36
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent .......... 40
ARTICLE FOUR SATISFACTION AND DISCHARGE ............................................ 40
SECTION 401. Satisfaction and Discharge of Indenture ............................... 40
SECTION 402. Application of Trust Funds ............................................ 42
ARTICLE FIVE REMEDIES .............................................................. 42
SECTION 501. Events of Default ..................................................... 42
SECTION 502. Acceleration of Maturity; Rescission and Annulment .................... 44
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee ....... 45
SECTION 504. Trustee May File Proofs of Claim ...................................... 46
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons 47
SECTION 506. Application of Money Collected ........................................ 47
SECTION 507. Limitation on Suits ................................................... 47
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if any,
and Interest and Additional Amounts ................................... 48
SECTION 509. Restoration of Rights and Remedies .................................... 48
SECTION 510. Rights and Remedies Cumulative ........................................ 48
SECTION 511. Delay or Omission Not Waiver .......................................... 48
SECTION 512. Control by Holders of Securities ...................................... 49
SECTION 513. Waiver of Past Defaults ............................................... 49
SECTION 514. Waiver of Usury, Stay or Extension Laws ............................... 49
SECTION 515. Undertaking for Costs ................................................. 50
ARTICLE SIX THE TRUSTEE ........................................................... 50
SECTION 601. Notice of Defaults .................................................... 50
SECTION 602. Certain Rights of Trustee ............................................. 50
SECTION 603. Not Responsible for Recitals or Issuance of Securities ................ 52
SECTION 604. May Hold Securities ................................................... 52
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 605. Money Held in Trust ................................................... 52
SECTION 606. Compensation and Reimbursement ........................................ 52
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests ........ 53
SECTION 608. Resignation and Removal; Appointment of Successor ..................... 53
SECTION 609. Acceptance of Appointment by Successor ................................ 54
SECTION 610. Merger, Conversion, Consolidation or Succession to Business ........... 55
SECTION 611. Appointment of Authenticating Agent ................................... 56
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY .................... 58
SECTION 701. Disclosure of Names and Addresses of Holders .......................... 58
SECTION 702. Reports by Trustee .................................................... 58
SECTION 703. Reports by Company .................................................... 58
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders ............. 59
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE ..................... 59
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions ................... 59
SECTION 802. Rights and Duties of Successor Corporation ............................ 59
SECTION 803. Officers' Certificate and Opinion of Counsel .......................... 60
ARTICLE NINE SUPPLEMENTAL INDENTURES ............................................... 60
SECTION 901. Supplemental Indentures Without Consent of Holders .................... 60
SECTION 902. Supplemental Indentures with Consent of Holders ....................... 62
SECTION 903. Execution of Supplemental Indentures .................................. 63
SECTION 904. Effect of Supplemental Indentures ..................................... 63
SECTION 905. Conformity with Trust Indenture Act ................................... 63
SECTION 906. Reference in Securities to Supplemental Indentures .................... 63
ARTICLE TEN COVENANTS .............................................................. 63
SECTION 1001. Payment of Principal, Premium, if any, and Interest and Additional
Amounts .............................................................. 63
SECTION 1002. Maintenance of Office or Agency ...................................... 64
SECTION 1003. Money for Securities Payments to Be Held in Trust .................... 65
SECTION 1004. Intentionally Omitted ................................................ 67
SECTION 1005. Intentionally Omitted ................................................ 67
SECTION 1006. Statement as to Compliance ........................................... 67
SECTION 1007. Additional Amounts ................................................... 67
SECTION 1008. Intentionally Omitted ................................................ 68
ARTICLE ELEVEN REDEMPTION OF SECURITIES ............................................. 69
SECTION 1101. Applicability of Article ............................................. 69
SECTION 1102. Election to Redeem; Notice to Trustee ................................ 69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed .................... 69
SECTION 1104. Notice of Redemption ................................................. 69
SECTION 1105. Deposit of Redemption Price .......................................... 71
SECTION 1106. Securities Payable on Redemption Date ................................ 71
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 1107. Securities Redeemed in Part .......................................... 72
SECTION 1108. Conversion Arrangement on Call for Redemption ........................ 72
ARTICLE TWELVE SINKING FUNDS ....................................................... 73
SECTION 1201. Applicability of Article ............................................. 73
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities ................ 73
SECTION 1203. Redemption of Securities for Sinking Fund ............................ 73
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS ................................ 74
SECTION 1301. Applicability of Article ............................................. 74
SECTION 1302. Repayment of Securities .............................................. 74
SECTION 1303. Exercise of Option ................................................... 74
SECTION 1304. When Securities Presented for Repayment Become Due and Payable ....... 75
SECTION 1305. Securities Repaid in Part ............................................ 76
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE ................................ 76
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance ............................................... 76
SECTION 1402. Defeasance and Discharge ............................................. 77
SECTION 1403. Covenant Defeasance .................................................. 77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance ...................... 78
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions ....................................... 79
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES .................................. 80
SECTION 1501. Purposes for Which Meetings May Be Called ............................ 80
SECTION 1502. Call, Notice and Place of Meetings ................................... 80
SECTION 1503. Persons Entitled to Vote at Meetings ................................. 81
SECTION 1504. Quorum; Action ....................................................... 81
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings .. 82
SECTION 1506. Counting Votes and Recording Action of Meetings ...................... 83
</TABLE>
v
<PAGE> 7
WORLDCOM, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of __________ ___, ______
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C> <C>
Section 310(a)(1) ........................ 607
(a)(2) ........................ 607
(b)............................ 607, 608
Section 312(c)............................ 701
Section 313(a)............................ 702
(c)............................ 702
Section 314(a) ........................... 703
(a)(4) ........................ 1006
(c)(1) ........................ 102
(c)(2) ........................ 102
(e) ........................... 102
Section 315(b) ........................... 601
Section 316(a)(last sentence) ............ 101 ("Outstanding")
(a)(1)(A) ..................... 502, 512
(a)(1)(B) ..................... 513
(b)............................ 508
Section 317(a)(1) ........................ 503
(a)(2) ....................... 504
Section 318(a) ........................... 111
(c) ........................... 111
</TABLE>
________________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Reference is also made to Section 318(c) of the Trust Indenture Act of
1939, which provides that the provisions of Section 310 to and including
Section 317 of the Trust Indenture Act of 1939 are a part of and govern every
qualified indenture, whether or not physically contained therein.
vi
<PAGE> 8
INDENTURE, dated as of ________________, 1997, between WORLDCOM, INC., a
Georgia corporation (hereinafter called the "Company"), having its principal
office at 515 East Amite Street, Jackson, Mississippi 39201 and
____________________________, a corporation duly organized and existing under
the laws of the State of ____________, as Trustee hereunder (hereinafter called
the "Trustee"), having its Corporate Trust Office at ___________________
_____________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount,
to bear interest at the rate or pursuant to the formula, to mature at such
times and to have such other provisions as shall be fixed as hereinafter
provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or 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 TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
<PAGE> 9
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five, Article
Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"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.
2
<PAGE> 10
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Stock" means, with respect to the Company, its common stock, $.01
par value, and with respect to any Material Subsidiary, stock of any class,
however designated, except stock which is non-participating beyond fixed
dividend and liquidation preferences and the holders of which have either no
voting rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Material Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the
Board, the President or a Vice President, and by its Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
____________________________.
"Corporation" includes corporations, associations, companies and business
trusts.
3
<PAGE> 11
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Indexed Note" means any Security with the amount of principal
payments determined by reference to an index currency.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Rate Agent", with respect to Securities of or within any series,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank designated pursuant to Section 301
or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting forth
(i) the applicable Market Exchange Rate or the applicable bid quotation and
(ii) the Dollar or Foreign Currency amounts of principal (and premium, if any)
and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation, signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
4
<PAGE> 12
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
5
<PAGE> 13
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301 for
the Securities of the relevant series, (ii) for any conversion of Dollars into
any Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being
made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii)
and (iii), the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one or more
major banks in New York City, London or other principal market for such
currency or currency unit in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency or currency unit shall be that
upon which a nonresident issuer of securities designated in such currency or
currency unit would purchase such currency or currency unit in order to make
payments in respect of such securities.
"Material Subsidiary" means any Subsidiary with stockholders' equity
which constituted at least 15% of the Company's consolidated stockholders'
equity, all as determined as of the date of the Company's most recently
prepared quarterly financial statements in accordance with generally accepted
accounting principles.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
6
<PAGE> 14
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Company and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities and any coupons appertaining thereto, provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(v) Securities converted into Common Stock or Preferred Stock in
accordance with or as contemplated by this Indenture, if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
7
<PAGE> 15
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such date
of original issuance of the amount determined as provided in clause (i) above)
of such Security, (iii) the principal amount of any Indexed Security that may
be counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which 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 on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest on such Securities are payable as specified as contemplated
by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Stock" means, with respect to the Company, its preferred stock,
$.01 par value.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
8
<PAGE> 16
"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" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "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 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 such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security
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or such installment of principal or interest is due and payable, as such date
may be extended pursuant to the provisions of Section 308.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder; provided, however,
that if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean only the Trustee with
respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture 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.
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Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to Section
1006) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the Outstanding Securities of all series or
one or more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by agents duly appointed in writing. If Securities of a series
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are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, 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
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other Person, or
(3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to
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the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be
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conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in the City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
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SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of the
State of _______________. This Indenture is subject to the provisions of the
TIA that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, provided that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
___________________________________________
as Trustee
By: ______________________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities
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<PAGE> 24
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
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(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
________________________, __________________, where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices or demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency
or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
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(11) if other than Dollars, the Foreign Currency in which payment of
the principal of (and premium, if any) or interest or Additional Amounts,
if any, on the Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election Date),
and the terms and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or currencies
in which such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may
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exchange such interests for Securities of such series and of like tenor of
any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section
305, and, if Registered Securities of the series are to be issuable as a
global Security, the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1007 on the Securities of
the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) the designation of the initial Exchange Rate Agent, if any; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such
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Board Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and, unless otherwise provided,
a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the 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. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may
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be specified with respect to any series of Securities pursuant to Section 301,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall
be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company
in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and any
coupons; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Securities
have been complied with and that, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any
of the Securities shall have occurred and be continuing.
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If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the Trustee
reasonably believes that it would be unable to perform its duties with respect
to such Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or a Company Order, or an Opinion of Counsel
or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 310 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.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board
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Resolution), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any non-matured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for
a temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL, for credit to the respective accounts
of the beneficial owners of such Securities (or to such other accounts as they
may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange
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for a portion of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear
or CEDEL, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or CEDEL, as the case may be, a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that
a Person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to
the applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment
Date to the respective accounts of Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in
such other forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the certifications
made pursuant to this paragraph shall satisfy the certification requirements of
the preceding two paragraphs of this Section 304(b) and of the third paragraph
of Section 303 of this Indenture and the interests of the Persons who are the
beneficial owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the same
series and of like tenor on the Exchange Date or the date of certification if
such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal or interest owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the
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Trustee prior to the expiration of two years after such Interest Payment Date
in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security Registrar,
it shall have the right to examine the Security Register at all reasonable
times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon
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<PAGE> 34
or coupons may be waived by the Company and the Trustee if there is furnished
to them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided
in Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such global Security expressly permit such global Security to be
exchanged in whole or in part for definitive Securities, a global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
selected or approved by the Company or to a nominee of such successor to DTC.
If at any time DTC notifies the Company that it is unwilling or unable to
continue as depositary for the applicable global Security or Securities or if
at any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 if so required by applicable law or regulation, the
Company shall appoint a successor depositary with respect to such global
Security or Securities. If (x) a successor depositary for such global Security
or Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or
ineligibility, (y) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities advise
DTC to cease acting as depositary for such global Security or Securities or (z)
the Company, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued or issuable
in the form of one or more global Securities shall no longer be represented by
such global Security or Securities, then the Company shall execute, and the
Trustee shall authenticate and deliver, definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such global Security or Securities. If any
beneficial owner of an interest in a
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<PAGE> 35
permanent global Security is otherwise entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged,
the Company shall execute, and the Trustee shall authenticate and deliver,
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global Security.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered for exchange by DTC or such
other depositary as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange
is requested may be among those selected for redemption; and provided further
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any portion
of a permanent global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date and the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and the opening of business at such
office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
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<PAGE> 36
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on
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and any Additional Amounts with respect to, Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset. (a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest on any
Registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located inside
the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
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In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice
is received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such publications shall
not be a condition precedent to the establishment of such Special Record
Date Notice of the
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proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security of
any series is surrendered at the office or agency in a Place of Payment
for such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by
the Company on the date or dates specified on the face of such Security (each
an "Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise and the related
information referred to below at least 50 but not more than 60 days prior to an
Optional Reset Date for such Note. Not later than 40 days prior to each
Optional Reset Date, the Trustee shall transmit, in the manner provided for in
Section 106, to the Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so, upon receipt of such information (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for
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in the Reset Notice, for the Subsequent Interest Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate (or such higher spread or spread multiplier, if applicable) to
the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) is reset on an Optional
Reset Date, and with respect to which the Holders of such Securities have not
tendered such Securities for repayment (or have validly revoked any such
tender) pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date,
the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days
prior to such Optional Reset Date and except that, if the Holder has tendered
any Security for repayment pursuant to the Reset Notice, the Holder may, by
written notice to the Trustee, revoke such tender or repayment until the close
of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Extension of Maturity. The provisions of this Section 308 may
be made applicable to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be specified pursuant to
such Section 301) (any series of Securities to which the provisions of this
Section 308 are made applicable are hereinafter referred to as the "Renewable
Securities"). The Renewable Securities shall mature on the initial Stated
Maturity thereof unless the maturity of all or any portion of the principal
amount thereof is extended pursuant to the procedures described below. On the
Interest Payment Dates in each year, the maturity of the Renewable Securities
will be extended to the Interest Payment Date occurring twelve months after
such Interest Payment Date, unless the Holder thereof elects to terminate the
automatic extension of the maturity of the Renewable Securities or of any
portion thereof having a principal amount of $100,000 or any multiple of $1,000
in excess thereof by delivering a notice to such effect to the Security
Registrar for the Renewable Securities not less than 25 nor more than 35 days
prior to such Interest Payment Date. Such notice shall be provided in the
manner described in the last paragraph of this Section 308. Such option may be
exercised by a Holder with respect to less than the entire principal amount of
such Holder's Renewable Securities, provided that the principal amount for
which such option is not exercised is at least $100,000 or any larger amount
that is an integral multiple of $1,000. Notwithstanding the foregoing, the
maturity of the Renewable Securities may not be extended beyond the date set
forth on the face of such Security as the final maturity date (the "Final
Maturity Date"). If the Holder elects to terminate the automatic extension of
the maturity of any portion of the principal amount of the Renewable
Securities, such portion will become due and payable on the Interest
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Payment Date falling six months after the Interest Payment Date prior to which
the Holder made such election.
An election to terminate the automatic extension of maturity may be
revoked as to any portion of the Renewable Securities having a principal amount
of $100,000 or any multiple of $1,000 in excess thereof by delivering a notice
to such effect to the Security Registrar on any day following the effective
date of the election to terminate the automatic extension of maturity and prior
to the date 10 days before the date on which such portion would otherwise
mature. Such notice shall be provided in the manner described in the last
paragraph of this Section 308. Such a revocation may be made for less than the
entire principal amount of the Renewable Securities for which the automatic
extension of maturity has been terminated; provided that the principal amount
of the Renewable Securities for which the automatic extension of maturity has
been terminated and for which such a revocation has not been made is at least
$100,000 or any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, a revocation may not be made during the period
from and including a Regular Record Date to but excluding the immediately
succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of the
Renewable Securities, if not revoked as described above by the Holder making
the election or any subsequent Holder, will be binding upon such subsequent
Holder.
The Renewable Securities may be redeemed in whole or in part at the option
of the Company on the Interest Payment Dates in each year at a redemption price
of 100% of the principal amount of the Renewable Securities to be redeemed,
together with interest accrued and unpaid thereon to the date of redemption.
Notice of redemption will be provided by mailing a notice of such redemption to
each Holder by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to the respective address
of each Holder as that address appears upon the books maintained by the
Registrar.
Notwithstanding the foregoing, not later than 20 days before the original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 106, notice of such higher interest rate to
the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
In order to deliver notice to the Security Registrar for purposes of
terminating (with respect to all or a portion of a Renewable Security) an
automatic extension of maturity, the Holder must follow the procedures set
forth in Article Thirteen for repayment at the option of Holders, except that
the period for delivery of notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that, if
the Holder has so elected to tender any Renewable Security for repayment, the
Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the tenth day before the Original Stated
Maturity.
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SECTION 309. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any 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.
SECTION 310. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. If the Company shall so acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be
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destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their
return to it.
SECTION 311. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, in respect of any Registered or Bearer Security of
such series will be made in the currency or currencies, currency unit or units
or composite currency or currencies in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 312
may be modified or superseded with respect to any Securities pursuant to
Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and premium,
if any) or interest, if any, on and Additional Amounts, if any, in respect of
such Registered Securities in any of the currencies, currency units or
composite currencies which may be designated for such election by delivering to
the Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such currency, currency unit or composite currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the
Trustee for such series of Registered Securities (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article Four or Fourteen or with respect to which a
notice of redemption has been given by the Company or a notice of option to
elect repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election to
the Trustee of such series of Registered Securities not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant currency or currencies, currency unit
or units or composite currency or currencies as provided in Section 312(a). The
Trustee for each such series of Registered Securities shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written election.
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(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to
the Company a written notice specifying, in the currency or currencies,
currency unit or units or composite currency or currencies in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, in respect of the Registered Securities to be paid on such
payment date, specifying the amounts in such currency or currencies, currency
unit or units or composite currency or currencies so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any currency or currencies, currency unit or units or composite
currency or currencies shall have elected to be paid in another currency,
currency unit or composite currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar, Foreign Currency or currencies, ECU or currency unit
payments to be made on such payment date. Unless otherwise specified pursuant
to Section 301, the Dollar, Foreign Currency or currencies, ECU or currency
unit amount receivable by Holders of Registered Securities who have elected
payment in a currency or currency unit as provided in paragraph (b) above shall
be determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received at approximately 11:00 A.M., New York City time,
on the second Business Day (the "Valuation Date") preceding the applicable
payment date from three recognized foreign exchange dealers for the purchase by
the quoting dealer of the currency, currency unit or composite currency in
which such payment would otherwise be made for the currency, currency unit or
composite currency in which Holders have elected payment for settlement on such
payment date in the aggregate amount of the currency, currency unit or
composite currency in which such payment would otherwise be made to such
Holders and at which the applicable dealer commits to execute a contract, and
such determination shall be conclusive and binding for all purposes, absent
manifest error. If such bid quotations are not available, payments will be made
in the currencies, currency units or composite currencies in which the
Registered Securities are payable as if no election under paragraph (b) above
was made. All currency exchange costs will be borne by the Holders making the
election provided for in paragraph (b) above by deductions from payments to
such Holders.
(d) If a Conversion Event occurs with respect to a Foreign Currency, the
ECU or any other currency unit in which any of the Securities are denominated
or payable other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, in respect of, the applicable Securities denominated or
payable in such Foreign Currency, the ECU or such other currency unit occurring
after the last date on which such Foreign Currency, the ECU or such other
currency unit was used (the "Conversion Date"), the Dollar shall be the
currency of payment for use on each such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar amount to be paid by the Company
to the Trustee of
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each such series of Securities and by such Trustee or any Paying Agent to
the Holders of such Securities with respect to such payment date shall be, in
the case of a Foreign Currency other than a currency unit, the Dollar
Equivalent of the Foreign Currency or, in the case of a currency unit, the
Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any currency or currencies, currency unit or
units or composite currency or currencies shall have elected to be paid in
another currency or currencies, currency unit or units or composite currency or
currencies as provided in paragraph (b) above, and a Conversion Event occurs
with respect to such elected currency or currencies, currency unit or units or
composite currency or currencies, such Holder shall receive payment in the
currency or currencies, currency unit or units or composite currency or
currencies in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the currency or
currencies, currency unit or units or composite currency or currencies in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit
or composite currency, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit or composite currency,
including, but not limited to, the ECU, on the Conversion Date. If after
the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component Currencies
are consolidated into a single currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency,
and such amount shall thereafter be a Specified Amount and such single
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currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be
replaced by amounts of such two or more currencies, having an aggregate
Dollar Equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component Currencies. If,
after the Conversion Date of the relevant currency unit, including, but
not limited to, the ECU, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount") occurs with
respect to any Component Currency of such currency unit and is continuing
on the applicable Valuation Date, the Specified Amount of such Component
Currency shall, for purposes of calculating the Dollar Equivalent of the
Currency Unit, be converted into Dollars at the Market Exchange Rate in
effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series of
Registered Securities as specified pursuant to clause 13 of Section 301
by which the written election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee for the appropriate series of Securities and all Holders
of such Securities denominated or payable in the relevant currency or
currencies, currency unit or units or composite currency or currencies. The
Exchange Rate Agent shall promptly give written notice to the Company and the
Trustee for the appropriate series of Securities of any such decision or
determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency
as set forth in the definition of Specified Amount above has occurred, the
Company will similarly give written notice to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent.
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The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent. (a) Unless otherwise specified pursuant to Section 301, if and so long
as the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause the Exchange
Rate Agent to make the necessary foreign exchange determinations at the time
and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued currency or currencies, currency unit or units or
composite currency or currencies into the applicable payment currency or
currency unit for the payment of principal (and premium, if any) and interest,
if any, and Additional Amounts, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued
by the Company on the same date and that are initially denominated and/or
payable in the same currency or currencies, currency unit or units or composite
currency or currencies).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer
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or exchange of Securities of such series herein expressly provided for and any
right to receive Additional Amounts, as provided in Section 1007), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003, have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest,
and any Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
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(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Company (including a default with respect to
Securities of any series other than that series) or under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness of the Company (including
this Indenture), whether such indebtedness now exists or shall hereafter
be created, which default shall constitute a failure to pay an aggregate
principal amount exceeding $10,000,000 of such indebtedness when due and
payable after the expiration of any applicable grace period with respect
thereto and shall have resulted in such indebtedness in an aggregate
principal amount exceeding $10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that if such default under such
bond, debenture, note, mortgage, indenture or other instrument or evidence
of indebtedness shall be remedied or cured by the Company or waived
pursuant to such agreement or instrument, then, unless the Stated Maturity
of the Securities, 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. Subject to the provisions
of Section 601, the Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the Trustee shall have
actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder
of any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(6) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
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(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities of
that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
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(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or
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the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or coupon in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest
and any Additional Amounts payable, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and payable
on such Securities and coupons for principal (and premium, if any),
interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium,
if any, and Interest and Additional Amounts. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have
the right which is absolute and unconditional to receive payment of the
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as
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may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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SECTION 515. Undertaking for Costs. All parties to this Indenture agree
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
on or any Additional Amounts with respect to any Security of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Securities and coupons of such series; and provided further that
in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by 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 each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own 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.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to
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constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. (a) There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) The following indentures shall be deemed to be specifically described
herein for the purposes of clause (i) of the first proviso contained in TIA
Section 310(b): ______________________________.
SECTION 608. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
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(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring
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Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien and claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which
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the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities or coupons shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
may otherwise be provided pursuant to Section 301, shall at all times be a bank
or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $5,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
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under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_________________________________________
as Trustee
By ______________________________________
as Authenticating Agent
By ______________________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders
of Securities if and as required in TIA Section 313(c) a brief report dated as
of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of such
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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SECTION 704. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, (1) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States or a State thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of (and
premium, if any) and any interest (including all Additional Amounts, if any,
payable pursuant to Section 1007) on all the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
supplemental indenture, complying with Article Nine hereof, satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation, and (ii)
the Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or condition.
SECTION 802. Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the
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Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. The Trustee
shall receive and shall be entitled to rely upon an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption, complies with the
provisions of this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included
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solely for the benefit of such series); provided, however, that in respect
of any such additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of that
or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
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SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1007 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, 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 or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the case
may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or
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more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest and
Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1007 in respect
of principal of (or premium, if any, on) such a Security, shall be payable
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only upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be
paid by check to the registered Holder of the Registered Security or other
person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in _______________________, 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 the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1007);
provided, however, that if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of that series are listed on such exchange; and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location
of each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Bearer Securities of that series pursuant to Section 1007)
at the offices specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company hereby appoints the Trustee
its agent to receive all such presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in
the United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1007) shall be made at the office of the Company's
Paying Agent in , if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may 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 of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in ,
and initially appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each
due date of the principal of (and premium, if any), or interest on or
Additional Amounts in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e) )
sufficient to pay the principal (and premium, if any) or interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, on or before each due date of
the principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum
(in the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest or Additional Amounts and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent ; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
or interest or Additional Amounts has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the
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expense of the Company cause notice to be mailed to the Holders or published
once in an Authorized Newspaper to the effect that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such mailing or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 1004. Intentionally Omitted.
SECTION 1005. Intentionally Omitted.
SECTION 1006. Statement as to Compliance. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year (which as of the
date hereof is December 31), a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section
1006, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1007. Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts, the Company will pay to the Holder of
any Security of such series or any coupon appertaining thereto Additional
Amounts as may be specified as contemplated by Section 301. Whenever in this
Indenture there is mentioned, in any context except in the case of Section
502(1), the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section
301 to the extent that, in such context, Additional Amounts are, were or would
be payable in respect thereof pursuant to such terms and express mention of
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the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of that series shall
be made to Holders of Securities of that series or any related coupons who are
not United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent
the Additional Amounts required by the terms of such Securities. In the event
that the Trustee or any Paying Agent, as the case may be, shall not so receive
the above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required with
respect to any payment of principal or interest with respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with
respect to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them or in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an Officers'
Certificate.
SECTION 1008. Intentionally Omitted.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series issued on such date with the
same terms not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
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Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without a charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
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(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, which it may not do in the
case of a sinking fund payment under Article Twelve, segregate and hold in
trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay on the Redemption Date the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that 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
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coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security which
is to be redeemed only in part (pursuant to the provisions of this Article or
of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. Conversion Arrangement on Call for Redemption. In connection
with any redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities called for redemption by an agreement with one or
more investment bankers or other purchasers to purchase such Securities by
paying to the Trustee or the Paying Agent in trust for the Holders of
Securities, on or before 10:00 a.m. New York time on the Redemption Date, an
amount not less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Eleven, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment to the
Trustee or Paying Agent of the above-described amount. The Trustee or the
Paying Agent shall hold and pay to the Holders whose Securities are selected
for redemption any such amount paid to it in the same manner as it would pay
moneys deposited with it by the Company for the redemption of Securities.
Without the Trustee's and the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or
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otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee and the Paying Agent as set forth in this Indenture, and the
Company agrees to indemnify the Trustee and the Paying Agent from, and hold
them harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purpose and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee and the Paying Agent (including the fees and
expenses of their agents and counsel) in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of
their powers, duties, responsibilities or obligations under this Indenture.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such Securities; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the applicable Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency
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unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is
to be satisfied by delivering and crediting Securities of that series pursuant
to Section 1202, and the optional amount, if any, to be added in cash to the
next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal)
of, and (except if the Repayment Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof, as the case may
be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security
to be repaid at the option of the Holder, the Trustee must receive at the Place
of Payment therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify
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the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing) or (2) a telegram, facsimile transmission or a letter from a member of
a national securities exchange, or the National Association of Securities
Dealers, Inc. ("NASD"), or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be repaid, the
certificate number or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, facsimile transmission or letter; provided, however, that such
telegram, facsimile transmission or letter shall only be effective if such
Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount
of such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or
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one or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive
the amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and
any coupons appertaining thereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth
below in this Article.
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SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all
its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described
in Section 1404 and as more fully set forth in such Section, payments in
respect of the principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1007, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise of
its option under Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. If specified pursuant to Section 301,
upon the Company's exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall be released
from its obligations under any covenant with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any covenant or by reason of reference in any covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 501(4) or
501(8) or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
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SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and
any coupons appertaining thereto, (1) an amount (in such currency,
currencies or currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity), or
(2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency, currencies
or currency unit in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, in any
case, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and
(ii) any mandatory sinking fund payments or analogous payments applicable
to such Outstanding Securities and any coupons appertaining thereto on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall
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confirm that, the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b)
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or the terms of such Security to receive payment in a currency or currency unit
other than that in which the deposit pursuant to Section 1404(a) has been made
in respect of such Security, or (b) a Conversion Event occurs as contemplated
in Section 312(d) or 312(e) or by the terms of any Security in respect of which
the deposit pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on
such Security as the same becomes due out of the proceeds yielded by converting
(from time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the
currency or currency unit in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such currency or currency unit in effect on the second Business Day prior
to each payment date, except, with respect to a Conversion Event, for such
currency or currency unit in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in , or in
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
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meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in , or in for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a specified percentage in principal amount of the
Outstanding Securities of a series, the Persons entitled to vote such specified
percentage in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1502(a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of any adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be
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adopted by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series; provided, however, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
104 and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by
proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
* * * * *
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This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WORLDCOM, INC.
By__________________________________
Title
[SEAL]
Attest:
__________________________________
Title
______________________________________
as Trustee
By ___________________________________
Title:
[SEAL]
Attest:
__________________________________
Title:
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STATE OF __________ )
) ss:
COUNTY OF ______________ )
On the ____ day of ____________, 199___, before me personally came
______________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ________________, __________________, that he is
____________________ of WorldCom, 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.
(Notarial Seal)
___________________________________
Notary Public
My Commission Expires:
________________________
STATE OF __________ )
) ss:
COUNTY OF _____________ )
On the ____ day of ____________, 199___, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at ________________, ___________________, that he is a
__________________ of [name of trustee], 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.
[Notarial Seal]
___________________________________
Notary Public
My Commission Expires:
________________________
85
<PAGE> 93
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise [WorldCom, Inc.] or its agent that such
financial institution 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) are owned by United States
or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement
A-1
<PAGE> 94
herein is not correct on such date, and in the absence of any such notification
it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S. $] _______________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date: _______________, 19___
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
_________________________________________
(Authorized Signator)
Name:
Title:
A-2
<PAGE> 95
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S. $]
____________________ principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in U.S. Treasury Regulations Section
1.165-12(d)(1)(v) are herein referred to as "financial institutions" purchasing
for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise [WorldCom, Inc.] or its agent that such financial institution
will comply with the requirements of Section 165 (j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations
A-3
<PAGE> 96
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date: ________________, 19___
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
Prior to the Exchange Date, as applicable]
[_______________________] as
Operator of the Euroclear System
[Cedel S.A.]
By_____________________________________
A-4
<PAGE> 1
EXHIBIT 4.2
_______________________________________________________
WORLDCOM, INC.
TO
[____________________________]
Trustee
____________________________
Indenture
Dated as of ______________, 1997
____________________________
Subordinated Debt Securities
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Election Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Monetary System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Rate Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Market Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Material Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset . . . . . . . . . . . . . . . . 29
SECTION 308. Extension of Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 311. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 312. Currency and Manner of Payments in Respect of Securities . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE FOUR SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 44
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . . . . . . 45
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if any, and
Interest and Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 603. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests . . . . . . . . . . . . . . . . . . . . 51
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 609. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
iii
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<TABLE>
<S> <C>
SECTION 610. Merger, Conversation, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . 54
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain
Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 802. Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE NINE SUPPLEMENTAL INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1001. Payment of Principal, Premium, if any, and Interest and Additional Amounts . . . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1004. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1005 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE ELEVEN REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1108. Conversion Arrangement on Call for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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 THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
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<TABLE>
<S> <C>
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1304. When Securities Presented for Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . . 73
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . 74
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1405. Deposited Money and Government Obligations to be Held in Trust; Other Miscellaneous Provisions . . . . 77
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . 80
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE SIXTEEN SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1601. Securities Subordinated to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1602. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1603. Obligation of the Company Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1604. Payments on Securities Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1605. Effectuation of Subordination by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1606. Knowledge of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1607. Trustee May Hold Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1608. Rights of Holders of Senior Indebtedness Not Impaired . . . . . . . . . . . . . . . . . . . . . . . . 84
</TABLE>
v
<PAGE> 7
WORLDCOM, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of __________ ___, ______
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607, 608
Section 312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
Section 316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
</TABLE>
- ------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Reference is also made to Section 318(c) of the Trust Indenture
Act of 1939, which provides that the provisions of Section 310 to and including
Section 317 of the Trust Indenture Act of 1939 are a part of and govern every
qualified indenture, whether or not physically contained therein.
vi
<PAGE> 8
INDENTURE, dated as of _______________, 1997, between
WORLDCOM, INC., a Georgia corporation (hereinafter called the "Company"),
having its principal office at 515 East Amite Street, Jackson, Mississippi
39201 and _______________, a corporation duly organized and existing under the
laws of the __________, as Trustee hereunder (hereinafter called the
"Trustee"), having its Corporate Trust Office at __________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured and subordinated indebtedness, and has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount,
to bear interest at the rate or pursuant to the formula, to mature at such
times and to have such other provisions as shall be fixed as hereinafter
provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or 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
TIA, either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating paper," as
used in TIA Section 311, shall have the meanings assigned to them in the rules
of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles; and
<PAGE> 9
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership or voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the
Company, the executive committee or any committee of that board duly authorized
to act hereunder.
"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 any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place
of
2
<PAGE> 10
Payment or particular location are authorized or required by law, regulation or
executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means, with respect to the Company, its common
stock, $.01 par value, and with respect to any Material Subsidiary, stock of
any class, however designated, except stock which is non-participating beyond
fixed dividend and liquidation preferences and the holders of which have either
no voting rights or limited voting rights entitling them, only in the case of
certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Material Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, the President or a Vice President, and by its Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at
______________________________.
"Corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
3
<PAGE> 11
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Rate Agent", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis
of a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant currency or currency unit), payable
with respect to a Security of any series on the basis of such Market Exchange
Rate or the applicable bid quotation, signed by the Treasurer, any Vice
President or any Assistant Treasurer of the Company.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or
4
<PAGE> 12
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the Government Obligation or the
specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1005,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit and Dollars
or such Foreign Currency calculated by the method specified pursuant to Section
301 for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion
of one Foreign Currency into Dollars or another Foreign Currency, the
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spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either New York
City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent. Unless
otherwise specified with respect to any Securities pursuant to Section 301, in
the event of the unavailability of any of the exchange rates provided for in
the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City, London or other
principal market for such currency or currency unit in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would purchase such currency or
currency unit in order to make payments in respect of such securities.
"Material Subsidiary" means any Subsidiary with stockholders'
equity which constituted at least 15% of the Company's consolidated
stockholders' equity, all as determined as of the date of the Company's most
recently prepared quarterly financial statements in accordance with generally
accepted accounting principles.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the President or a Vice President and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or other counsel
for the Company and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Common Stock or Preferred
Stock in accordance with or as contemplated by this Indenture, if the
terms of such Securities provide for convertibility pursuant to
Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such date
of original issuance of the amount determined as provided in clause (i) above),
of such Security, (iii) the principal amount of any Indexed Security that may
be counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned
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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 on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Preferred Stock" means, with respect to the Company, its
preferred stock, $.01 par value.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, 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" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301, whether or not
a Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "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 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 such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture;
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provided, however, that, if at any time there is more than one Person acting as
Trustee under this Indenture, "Securities" with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the first recital
of this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means (i) the principal of and premium,
if any, and unpaid interest on indebtedness for money borrowed, (ii) purchase
money and similar obligations, (iii) obligations under capital leases, (iv)
guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which the Company is responsible for the payment
of, such indebtedness of others, (v) renewals, extensions and refunding of any
such indebtedness, (vi) interest or obligations in respect of any such
indebtedness accruing after the commencement of any insolvency or bankruptcy
proceedings; and (vii) obligations associated with derivative products such as
interest rate and currency exchange contracts, foreign exchange contracts,
commodity contracts, and similar arrangements, unless, in each case, the
instrument by which the Company incurred, assumed or guaranteed the
indebtedness or obligations described in clauses (i) through (vii) hereof
expressly provides that such indebtedness or obligation is subordinate or
junior in right of payment to any other indebtedness or obligations of the
Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
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"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture 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 (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon an Opinion of Counsel,
or a certificate or representations by counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the opinion, certificate
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, 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
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
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(b) 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 reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership of Bearer Securities may be proved by
the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any
other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
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SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized Newspaper
in the City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by
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publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Securities or coupons, express or implied, shall give to
any Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law. This Indenture and the
Securities and coupons shall be governed by and construed in accordance with
the law of the State of ______________. This Indenture is subject to the
provisions of the TIA that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or any Security or coupon other than a provision in the Securities of any
series which specifically states that such provision shall apply in lieu
hereof), payment of interest or any Additional Amounts or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or
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Maturity, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
__________________________________________
as Trustee
By:________________________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301
and the provisions of Section 302, any such Security
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shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth, or determined in the manner provided, in an
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Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time
to time by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date
or dates will be determined or extended, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates shall
be determined, the Interest Payment Dates on which such interest will
be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or
the method by which such date shall be determined, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to _______________, where the principal of (and premium, if
any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(6) the period or periods within which, the price or
prices at which, the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to
have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms
and conditions upon which
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Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and, if other than the
denomination of $5,000, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(11) if other than Dollars, the Foreign Currency in which
payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated
and the particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined;
(13) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of the
series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies
in which such Securities are denominated or stated to be payable and
the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable,
in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such
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Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities (with or without coupons)
or both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the identity of
the depositary for such series;
(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen;
(20) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will
pay Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so,
whether the
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Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(23) the designation of the initial Exchange Rate Agent,
if any;
(24) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the 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. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate to Euroclear
or CEDEL, as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and
this Indenture. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
the terms of particular Securities of such series, such as interest rate or
formula, maturity date, date of issuance and date from which interest shall
accrue. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a)
through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that,
(a) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any coupons
have been established in conformity with the provisions of
this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations
of the
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Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights, to general equitable
principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders
of such Securities and any coupons; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the
preceding paragraph at the time of issuance of each Security of such series,
but such order, opinion and certificates, with appropriate modifications to
cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 310 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.
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SECTION 304. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer
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form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security
only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form set forth as Exhibit A-1 to this
Indenture (or in such other forms as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
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Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by
Euroclear and CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest Payment Date
in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security Register as
herein provided. In the event that the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security Register at all
reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise specified
with respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
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denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such global Security expressly permit such global Security to be
exchanged in whole or in part for definitive Securities, a global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
selected or approved by the Company or to a nominee of such successor to DTC.
If at any time DTC notifies the Company that it is unwilling or unable to
continue as depositary for the applicable global Security or Securities or if
at any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 if so required by applicable law or regulation, the
Company shall appoint a successor depositary with respect to such global
Security or Securities. If (x) a successor depositary for such global Security
or Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such unwillingness, inability or
ineligibility, (y) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities advise
DTC to cease acting as depositary for such global Security or Securities or (z)
the
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Company, in its sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or issuable in the form
of one or more global Securities shall no longer be represented by such global
Security or Securities, then the Company shall execute, and the Trustee shall
authenticate and deliver definitive Securities of like series, rank, tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of such global Security or Securities. If any beneficial
owner of an interest in a permanent global Security is otherwise entitled to
exchange such interest for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided in
the permanent global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such interest
may be so exchanged, the Company shall execute, and the Trustee shall
authenticate and deliver, definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC or such other depositary as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer Security delivered
in exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or
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exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107
or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if
such Security may be among those selected for redemption during a period
beginning at the opening of business 15 days before selection of the Securities
to be redeemed under Section 1103 and ending at the close of business on (A) if
such Securities are issuable only as Registered Securities, the day of the
mailing of the relevant notice of redemption and (B) if such Securities are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if such Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company
or the Trustee to save each of them or any agent of either of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
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the Security to which such destroyed, lost or stolen coupon appertains, pay
such Security or coupon; provided, however, that payment of principal of (and
premium, if any), any interest on and any Additional Amounts with respect to,
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset. (a) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest
on any Registered Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located inside
the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security
held for its account by Cede & Co. or the Common Depositary, as the case may
be, for the purpose of permitting such party to credit the interest received by
it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
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In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on
any Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date
of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each place of
payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
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shall be paid to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise and the
related information referred to below at least 50 but not more than 60 days
prior to an Optional Reset Date for such Note. Not later than 40 days prior to
each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so, upon receipt of such information (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
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spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until
the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION 308. Extension of Maturity. The provisions of this
Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301) (any series of Securities to which the
provisions of this Section 308 are made applicable are hereinafter referred to
as the "Renewable Securities"). The Renewable Securities shall mature on the
initial Stated Maturity thereof unless the maturity of all or any portion of
the principal amount thereof is extended pursuant to the procedures described
below. On the Interest Payment Dates in each year, the maturity of the
Renewable Securities will be extended to the Interest Payment Date occurring
twelve months after such Interest Payment Date, unless the Holder thereof
elects to terminate the automatic extension of the maturity of the Renewable
Securities or of any portion thereof having a principal amount of $100,000 or
any multiple of $1,000 in excess thereof by delivering a notice to such effect
to the Security Registrar for the Renewable Securities not less than 25 nor
more than 35 days prior to such Interest Payment Date. Such notice shall be
provided in the manner described in the last paragraph of this Section 308.
Such option may be exercised by a Holder with respect to less than the entire
principal amount of such Holder's Renewable Securities, provided that the
principal amount for which such option is not exercised is at least $100,000 or
any larger amount that is an integral multiple of $1,000. Notwithstanding the
foregoing, the maturity of the Renewable Securities may not be extended beyond
the date set forth on the face of such Security as the final maturity date (the
"Final Maturity Date"). If the Holder elects to terminate the automatic
extension of the maturity of any portion of the principal amount of the
Renewable Securities, such portion will become due and payable on the Interest
Payment Date falling six months after the Interest Payment Date prior to which
the Holder made such election.
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An election to terminate the automatic extension of maturity
may be revoked as to any portion of the Renewable Securities having a principal
amount of $100,000 or any multiple of $1,000 in excess thereof by delivering a
notice to such effect to the Security Registrar on any day following the
effective date of the election to terminate the automatic extension of maturity
and prior to the date 10 days before the date on which such portion would
otherwise mature. Such notice shall be provided in the manner described in the
last paragraph of this Section 308. Such a revocation may be made for less
than the entire principal amount of the Renewable Securities for which the
automatic extension of maturity has been terminated; provided that the
principal amount of the Renewable Securities for which the automatic extension
of maturity has been terminated and for which such a revocation has not been
made is at least $100,000 or any larger amount that is an integral multiple of
$1,000. Notwithstanding the foregoing, a revocation may not be made during the
period from and including a Regular Record Date to but excluding the
immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the
maturity of the Renewable Securities, if not revoked as described above by the
Holder making the election or any subsequent Holder, will be binding upon such
subsequent Holder.
The Renewable Securities may be redeemed in whole or in part
at the option of the Company on the Interest Payment Dates in each year at a
redemption price of 100% of the principal amount of the Renewable Securities to
be redeemed, together with interest accrued and unpaid thereon to the date of
redemption. Notice of redemption will be provided by mailing a notice of such
redemption to each Holder by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to the
respective address of each Holder as that address appears upon the books
maintained by the Registrar.
Notwithstanding the foregoing, not later than 20 days before
the original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
In order to deliver notice to the Security Registrar for
purposes of terminating (with respect to all or a portion of a Renewable
Security) an automatic extension of maturity, the Holder must follow the
procedures set forth in Article Thirteen for repayment at the option of
Holders, except that the period for delivery of notification to the Trustee
shall be at least 25 but not more than 35 days prior to the original Stated
Maturity and except that, if the Holder has so elected to tender any Renewable
Security for repayment, the Holder may by written notice to the Trustee revoke
such tender for repayment until the close of business on the tenth day before
the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and
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premium, if any), and (subject to Sections 305 and 307) interest on, such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any 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.
SECTION 310. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by the
Trustee and the Trustee shall deliver a certificate of such destruction to the
Company, unless by a Company Order the Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
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SECTION 312. Currency and Manner of Payments in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal of (and premium, if any) and
interest, if any, on, and Additional Amounts, if any, in respect of any
Registered or Bearer Security of such series will be made in the currency or
currencies, currency unit or units or composite currency or currencies in which
such Registered Security or Bearer Security, as the case may be, is payable.
The provisions of this Section 312 may be modified or superseded with respect
to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with
respect to Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive payments of
principal of (and premium, if any) or interest, if any, on and Additional
Amounts, if any, in respect of such Registered Securities in any of the
currencies, currency units or composite currencies which may be designated for
such election by delivering to the Trustee for such series of Registered
Securities a written election with signature guarantees and in the applicable
form established pursuant to Section 301, not later than the close of business
on the Election Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such currency, currency unit
or composite currency, such election will remain in effect for such Holder or
any transferee of such Holder until changed by such Holder or such transferee
by written notice to the Trustee for such series of Registered Securities (but
any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change of election may
be made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or with respect
to which the Company has deposited funds pursuant to Article Four or Fourteen
or with respect to which a notice of redemption has been given by the Company
or a notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
currency or currencies, currency unit or units or composite currency or
currencies as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301,
if the election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant to Section
301, not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate Agent
will deliver to the Company a written notice specifying, in the currency or
currencies, currency unit or units or composite currency or currencies in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, in respect of the Registered Securities to be paid
on such
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payment date, specifying the amounts in such currency or currencies, currency
unit or units or composite currency or currencies so payable in respect of the
Registered Securities as to which the Holders of Registered Securities
denominated in any currency or currencies, currency unit or units or composite
currency or currencies shall have elected to be paid in another currency,
currency unit or composite currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar, Foreign Currency or currencies, ECU or currency unit
payments to be made on such payment date. Unless otherwise specified pursuant
to Section 301, the Dollar, Foreign Currency or currencies, ECU or currency
unit amount receivable by Holders of Registered Securities who have elected
payment in a currency or currency unit as provided in paragraph (b) above shall
be determined by the Exchange Rate Agent based on the highest bid quotation in
The City of New York received at approximately 11:00 A.M., New York City time,
on the second Business Day (the "Valuation Date") preceding the applicable
payment date from three recognized foreign exchange dealers for the purchase by
the quoting dealer of the currency, currency unit or composite currency in
which such payment would otherwise be made for the currency, currency unit or
composite currency in which Holders have elected payment for settlement on such
payment date in the aggregate amount of the currency, currency unit or
composite currency in which such payment would otherwise be made to such
Holders and at which the applicable dealer commits to execute a contract, and
such determination shall be conclusive and binding for all purposes, absent
manifest error. If such bid quotations are not available, payments will be
made in the currencies, currency units or composite currencies in which the
Registered Securities are payable as if no election under paragraph (b) above
was made. All currency exchange costs will be borne by the Holders making the
election provided for in paragraph (b) above by deductions from payments to
such Holders.
(d) If a Conversion Event occurs with respect to a
Foreign Currency, the ECU or any other currency unit in which any of the
Securities are denominated or payable other than pursuant to an election
provided for pursuant to paragraph (b) above, then with respect to each date
for the payment of principal of (and premium, if any) and interest, if any, on,
and Additional Amounts, if any, in respect of, the applicable Securities
denominated or payable in such Foreign Currency, the ECU or such other currency
unit occurring after the last date on which such Foreign Currency, the ECU or
such other currency unit was used (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar amount to be paid by the Company
to the Trustee of each such series of Securities and by such Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment
date shall be, in the case of a Foreign Currency other than a currency unit,
the Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by
the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301,
if the Holder of a Registered Security denominated in any currency or
currencies, currency unit or units or composite currency or currencies shall
have elected to be paid in another currency or currencies,
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currency unit or units or composite currency or currencies as provided in
paragraph (b) above, and a Conversion Event occurs with respect to such elected
currency or currencies, currency unit or units or composite currency or
currencies, such Holder shall receive payment in the currency or currencies,
currency unit or units or composite currency or currencies in which payment
would have been made in the absence of such election; and if a Conversion Event
occurs with respect to the currency or currencies, currency unit or units or
composite currency or currencies in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall
be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit or
composite currency, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit or composite currency, including, but
not limited to, the ECU, on the Conversion Date. If after the Conversion Date
the official unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be divided
or multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar Equivalent of
the Specified Amount of such former Component Currency at the Market Exchange
Rate immediately before such division, and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not
limited to, the ECU, a Conversion Event (other than any event referred to above
in this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable
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Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series of
Registered Securities as specified pursuant to clause 13 of Section 301 by
which the written election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
currency or currencies, currency unit or units or composite currency or
currencies. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency
as set forth in the definition of Specified Amount above has occurred, the
Company will similarly give written notice to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent and shall not otherwise have
any duty or obligation to determine the accuracy or validity of such
information independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent. (a) Unless otherwise specified pursuant to Section 301,
if and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company
will cause the Exchange Rate Agent to make the
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necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
currency or currencies, currency unit or units or composite currency or
currencies into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, and Additional
Amounts, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and
the Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless otherwise specified
pursuant to Section 301, at any time there shall only be one Exchange Rate
Agent with respect to the Securities of any particular series that are
originally issued by the Company on the same date and that are initially
denominated and/or payable in the same currency or currencies, currency unit or
units or composite currency or currencies).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1005), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and
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maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money
has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003,
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or 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 as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be
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held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any), and any interest and Additional Amounts for whose
payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series
or of any coupon appertaining thereto, when such interest, Additional
Amounts or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture with respect to
any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of indebtedness of the Company (including a default with
respect to Securities of any series other than that series) or under
any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness of the
Company (including this Indenture), whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a
failure to pay an aggregate principal amount exceeding $10,000,000 of
such indebtedness when due and payable after the
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expiration of any applicable grace period with respect thereto and
shall have resulted in such indebtedness in an aggregate principal
amount exceeding $10,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided, however,
that if such default under such bond, debenture, note, mortgage,
indenture or other instrument or evidence of indebtedness shall be
remedied or cured by the Company or waived pursuant to such agreement
or instrument, then, unless the Stated Maturity of the Securities
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. Subject to the provisions
of Section 601, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee
shall have actual knowledge of such default or (B) the Trustee shall
have received written notice thereof from the Company, from any
Holder, from the holder of any such indebtedness or from the trustee
under any such mortgage, indenture or other instrument; or
(6) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit or
its creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian of the Company or for
all or substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
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(8) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay in the currency, currency unit or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)):
(A) all overdue installments of interest on and
any Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on)
any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for
in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest and
any Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series
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which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series
and any related coupon when such interest or Additional Amount becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities
of such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable
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as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and Additional
Amounts, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of amounts then due and unpaid to the
Holders of Senior Indebtedness, to the extent required by Article XVI;
THIRD: To the payment of the amounts then due and unpaid
upon the Securities and coupons for principal (and premium, if any)
and interest and any Additional Amounts payable, in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal
(and premium, if any), interest and Additional Amounts, respectively;
and
FOURTH: To the payment of the remainder, if any, to the
Company.
SECTION 507. Limitation on Suits. No Holder of any Security
of any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, and Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307)
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interest on, and any Additional Amounts in respect of, such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may been deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders
of not less than a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the
Holders of Securities of such series not joining therein.
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SECTION 513. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of any undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
or after the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on or any Additional Amounts with respect to any Security
of such series, or in the payment of any sinking or purchase fund installment
with respect to the Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
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SECTION 605. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by 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 each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or Section
501(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium,
if any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. (a) There shall at all times be a Trustee hereunder
which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law
or the requirements of Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance
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with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) The following indentures shall be deemed to be
specifically described herein for the purposes of clause (i) of the first
proviso contained in TIA Section 310(b): _________________.
SECTION 608. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a
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successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien and claim, if any, provided
for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions
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of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any
time when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be
promptly
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furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 301, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the
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Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
______________________________________________,
as Trustee
By____________________________________________
as Authenticating Agent
By_____________________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities if and as required in TIA Section 313(c) a brief
report dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from
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time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within
30 days after the filing thereof with the Trustee, in the manner and
to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the
Regular Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular Record Date,
or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The Company
may consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case, (1) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States or a State thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of (and
premium, if any) and any interest (including
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all Additional Amounts, if any, payable pursuant to Section 1005) on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture, complying with Article Nine
hereof, satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, lease or conveyance, be in default in the performance of any such
covenant or condition.
SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
The Trustee shall receive and shall be entitled to rely upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter
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into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or
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change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate
or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay Additional Amounts
pursuant to Section 1005 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where,
or the currency or currencies, currency unit or units or composite
currency or currencies in which, 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 or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
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compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section or
Section 513, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) subordinate the indebtedness evidenced by the
Securities to any indebtedness of the Company other than Senior
Indebtedness.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
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.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the
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Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest and Additional Amounts. The Company covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium, if any) and interest on and any
Additional Amounts payable in respect of the Securities of that series in
accordance with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1005 in respect of principal of (or premium, if
any, on) such a Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the Company,
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment or conversion, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain: (A) in ____________________, 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 the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1005);
provided, however, that if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in Luxembourg or any
other required city located outside the United States, as the case may be, so
long as the Securities of that series are listed on such exchange; and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series located outside the United States an office or agency
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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 of the location, and any change
in the location, of each such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1005) at the offices specified in the Security, in London, England, and
the Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Company hereby appoints
the Trustee its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the Securities of a
series are payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any Additional Amounts payable on
Securities of such series pursuant to Section 1005) shall be made at the office
of the Company's Paying Agent in __________________, if (but only if) payment
in Dollars of the full amount of such principal, premium, interest or
Additional Amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may 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 of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to Section 301 with
respect to a series of Securities, the Company hereby designates as a Place of
Payment for each series of Securities the office or agency of the Company in
___________________, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent.
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SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium, if any), or interest on
or Additional Amounts in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal (and premium, if any) or interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium, if any), or interest on or
Additional Amounts in respect of, any Securities of that series, deposit with a
Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or interest or Additional
Amounts, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest or Additional Amounts
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such
default upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
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Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any
series and remaining unclaimed for two years after such principal (and premium,
if any), or interest or Additional Amounts has become due and payable shall be
paid to the Company upon Company Request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
notice to be mailed to the Holders or published once in an Authorized Newspaper
to the effect that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
SECTION 1004. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year
(which as of the date hereof is December 31), a brief certificate from the
principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1006, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1005. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Company will pay to
the Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context except in the
case of Section 502(1), the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers'
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Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are not United States persons without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of the series. If any such withholding shall be required,
then such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities of that
series or related coupons and the Company will pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such Securities.
In the event that the Trustee or any Paying Agent, as the case may be, shall
not so receive the above-mentioned certificate, then the Trustee or such Paying
Agent shall be entitled (i) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest with respect to
any Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal and
interest with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them or in reliance on any Officers' Certificate furnished
pursuant to this Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
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Redemption Date by the Trustee, from the Outstanding Securities of such series
issued on such date with the same terms not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption
shall be given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and
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payable upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee for such series and
any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then
existing conversion price or rate, and the date and time when the
option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to
any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money in
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies,
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currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall, if the same were interest-bearing, cease to
bear interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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SECTION 1108. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company may arrange for
the purchase and conversion of any Securities called for redemption by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Trustee or the Paying Agent in trust for the
Holders of Securities, on or before 10:00 a.m. New York time on the Redemption
Date, an amount not less than the Redemption Price, together with interest, if
any, accrued to the Redemption Date of such Securities, in immediately
available funds. Notwithstanding anything to the contrary contained in this
Article Eleven, the obligation of the Company to pay the Redemption Price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment to the
Trustee or Paying Agent of the above-described amount. The Trustee or the
Paying Agent shall hold and pay to the Holders whose Securities are selected
for redemption any such amount paid to it in the same manner as it would pay
moneys deposited with it by the Company for the redemption of Securities.
Without the Trustee's and the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee and the Paying
Agent as set forth in this Indenture, and the Company agrees to indemnify the
Trustee and the Paying Agent from, and hold them harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purpose and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee and the
Paying Agent (including the fees and expenses of their agents and counsel) in
the defense of any claim or liability arising out of or in connection with the
exercise or performance of any of their powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund payment
may be
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subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously called
for redemption) together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be added in cash to
the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
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SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with
interest, if any, thereon accrued to the Repayment Date specified in or
pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order
for any Security to be repaid at the option of the Holder, the Trustee must
receive at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places of which the Company shall from time
to time notify the Holders of such Securities) not earlier than 60 days nor
later than 30 days prior to the Repayment Date (1) the Security so providing
for such repayment together with the "Option to Elect Repayment" form on the
reverse thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, facsimile transmission or a letter
from a member of a national securities exchange, or the National Association of
Securities Dealers, Inc. ("NASD"), or a commercial bank or trust company in
the United States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security to be
repaid, the certificate number or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together with the duly
completed form entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifth Business Day
after the date of such telegram, facsimile transmission or letter; provided,
however, that such telegram, facsimile transmission or letter shall only be
effective if such Security and form duly completed are received by the Trustee
by such fifth Business Day. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
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SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of
any Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
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denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities of or
within a series under Section 1402 or (b) covenant defeasance of the Securities
of or within a series under Section 1403, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and
any coupons appertaining thereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth
below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, 'defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described
in Section 1404 and as more fully set forth in such Section, payments in
respect of the principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1005, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise of
its option under Section 1403 with respect to such Securities and any coupons
appertaining thereto.
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SECTION 1403. Covenant Defeasance. If specified pursuant to
Section 301, upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under any covenant contained herein with
respect to such Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with any such covenant,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any covenant or by
reason of reference in any covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(4) or 501(8) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of Section
1402 or Section 1403 to any Outstanding Securities of or within a series and
any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such currency, currencies or currency unit
in which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity), or (2) Government
Obligations applicable to such Securities and coupons appertaining
thereto (determined on the basis of the currency, currencies or
currency unit in which such Securities and coupons appertaining
thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof, in an amount, in any case, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or
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analogous payments applicable to such Outstanding Securities and any
coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as
Sections 501(6) and 501(7) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1402 or Section
1403 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee
for such trust funds or (ii) all necessary registrations under said
Act have been effected.
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(g) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301.
SECTION 1405. Deposited Money and Government Obligations to
be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs as contemplated in Section
312(d) or 312(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 1404(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable Market Exchange Rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404
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which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in ___________________________, or in _________ as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in ________________________________, or in _________for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting
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of Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action
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shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting,
and the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
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duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Securities, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest and any Additional Amounts payable in respect of each and
all of the Securities is hereby expressly subordinated, to the extent and in
the manner hereinafter set forth, in right of payment to the prior payment in
full of Senior Indebtedness.
In the event (a) of any distribution of assets of the Company
upon any dissolution, winding up, liquidation or reorganization of the Company
whether in bankruptcy, insolvency, reorganization or receivership proceedings
or upon an assignment for the benefit of creditors or any other marshaling of
the assets and liabilities of the Company or otherwise, except a distribution
in connection with a merger or consolidation or a conveyance or transfer of all
or substantially all of the properties of the Company which complies with the
requirements of Article Eight, or (b) that a default shall have occurred and be
continuing with respect to the payment of principal of (or premium, if any) or
interest on or any Additional Amounts payable in respect of any Senior
Indebtedness, or (c) that the principal of the Securities of any series (or in
the case of Original Issue Discount Securities, the portion of the principal
amount thereof referred to in Section 502) shall have been declared due and
payable pursuant to Section 502 and such declaration shall not have been
rescinded and annulled as provided in Section 502, then:
(1) in a circumstance described in the foregoing clause
(a) or (b) the holders of all Senior Indebtedness, and in the
circumstance described in the foregoing clause (c) the holders of all
Senior Indebtedness (other than Other Obligations) outstanding at the
time the principal of such Securities (or in the case of Original
Issue Discount Securities, such portion of the principal amount) shall
have been so declared due and payable, shall first be entitled to
receive payment of the full amount due thereon in respect of
principal, premium (if any), Interest and Additional Amounts, or
provision shall be made for such payment in money or money's worth,
before the Holders of any of the Securities are entitled to receive
any payment on account of the principal of (or premium, if any) or
interest on or any Additional Amounts in respect of the indebtedness
evidenced by the Securities;
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(2) any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or
readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in this
Article with respect to the securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment),
to which the Holders of any of the Securities would be entitled except
for the provisions of this Article shall be paid or delivered by the
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instrument evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full
of all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the indebtedness evidenced by
the Securities under this Indenture; and
(3) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article with respect to the
Securities, to the payment of all Senior Indebtedness, provided that
the rights of the holders of Senior Indebtedness are not altered by
such reorganization or readjustment), shall be received by the Holders
of any of the Securities before all Senior Indebtedness is paid in
full, such payment or distribution shall be paid over to the holders
of such Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.
SECTION 1602. Subrogation. Subject to the payment in full of
all Senior Indebtedness to which the indebtedness evidenced by the Securities
is in the circumstances subordinated as provided in Section 1601, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Securities, no such payment or distribution made to the holders
of such Senior Indebtedness by virtue of this Article which otherwise would
have been made to the Holders of the Securities shall be deemed to be a payment
by the Company on account of such Senior Indebtedness, it being understood that
the provisions
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of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of Senior Indebtedness.
SECTION 1603. Obligation of the Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest on and any Additional Amounts in respect of the Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness nor shall anything herein or therein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness in respect of
cash, property or securities of the Company received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree 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 trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 1604. Payments on Securities Permitted. Nothing
contained in this Article or elsewhere in this Indenture, or in any of the
Securities, shall affect the obligation of the Company to make, or prevent the
Company from making, payment of the principal of (or premium, if any) or
interest on or any Additional Amounts in respect of the Securities in
accordance with the provisions hereof and thereof, except as otherwise provided
in this Article.
SECTION 1605. Effectuation of Subordination by Trustee. Each
Holder of the Securities, 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 and appoints the Trustee
his attorney-in-fact for any and all such purposes.
SECTION 1606. Knowledge of Trustee. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, the
Trustee shall not be deemed to owe any fiduciary duty to the Holders of Senior
Indebtedness and shall not be charged with knowledge of the existence of any
facts which would prohibit the making of any payment or 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
of Securities, any paying or conversion agent of the Company or the holder or
representative of any class of Senior
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Indebtedness; provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least 3 Business Days prior to the
date upon which, by the terms hereof, any money may become payable for any
purpose (including, without limitation, the payment of the principal of (or
premium, if any) or interest on, or Additional Amounts in respect of, any
Security) then, anything herein contained to the contrary notwithstanding, the
Trustee shall have all power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it during or
after such 3 Business Day period.
SECTION 1607. Trustee May Hold Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness at the time held
by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in Section 313 of the Trust Indenture Act or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or
payments to, the Trustee (under or pursuant to Section 606) to Senior
Indebtedness.
SECTION 1608. Rights of Holders of Senior Indebtedness Not
Impaired. No right of any present or future holder of any Senior Indebtedness
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 or any knowledge thereof any such
holder may have or be otherwise charged with.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
WORLDCOM, INC.
By____________________________________
Title:
[SEAL]
Attest:
__________________________________
Title:
_______________________________________
as Trustee
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<PAGE> 92
By____________________________________
Title:
[SEAL]
Attest:
__________________________________
Title:
85
<PAGE> 93
STATE OF ____________ )
) ss:
COUNTY OF _________ )
On the _____ day of __________, 199__, before me personally
came __________, to me known, who, being by me duly sworn, did depose and say
that he resides at __________, __________, that he is __________ of WorldCom,
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.
[Notarial Seal]
________________________________
Notary Public
My Commission Expires:
_________________________
STATE OF_________ )
) ss:
COUNTY OF _______ )
On the _____ day of ___________, 199__, before me personally
came __________, to me known, who, being by me duly sworn, did depose and say
that he resides at __________, that he is a __________ of [name of trustee],
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.
[Notarial Seal]
________________________________
Notary Public
My Commission Expires:
_________________________
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<PAGE> 94
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 2.165-12(c) (1) (v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise [WorldCom, Inc.], or its agent that such
financial institution 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) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in United States Treasury Regulations Section 1.163-5(c) (2) (i)
(D) (7)), and, in addition, if the owner is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S. $]
__________ of such interest in the above- captioned Securities in respect of
which we are not able to certify and as to
A-1
<PAGE> 95
which we understand an exchange for an interest in a Permanent Global Security
or an exchange for and delivery of definitive Securities (or, if relevant,
collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Date: __________, 19___
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making
Certification]
____________________________________
(Authorized Signator)
Name:
Title:
A-2
<PAGE> 96
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S. $] __________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c) (1) (v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise [WorldCom, Inc.] or its agent that such financial institution
will comply with the requirements of Section 165(j) (3) (A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c) (2) (i) (D) (7)), and, to the further
effect, that financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
A-3
<PAGE> 97
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Date: __________, 19___
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[________________________________] as
Operator of the Euroclear System
[Cedel S.A.]
By_____________________________________
A-4
<PAGE> 1
EXHIBIT 5.1
January 31, 1997
Board of Directors of
WorldCom, Inc.
515 East Amite Street
Jackson, Mississippi 39201
Ladies and Gentlemen:
I am General Counsel - Corporate Development of WorldCom, Inc., a
Georgia corporation (the "Company"), and have acted as counsel in connection
with a Registration Statement on Form S-3 and Prospectus, Registration No. 333-
____, which the Company proposes to file with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to
$3,000,000,000 in aggregate initial offering price of senior unsecured
debentures, notes, and other forms of indebtedness issuable in series under an
Indenture substantially in the form included in the Registration Statement (the
ADebt Securities"). Terms not defined herein shall have the meaning thereof
contained in the Prospectus.
In connection herewith, I have examined and relied without
investigation as to matters of fact upon the Registration Statement, the
Second Amended and Restated Articles of Incorporation and Bylaws of the
Company, certificates of public officials, certificates and statements of
officers of the Company, and such other corporate records, documents,
certificates and instruments as I have deemed necessary or appropriate to
enable me to render the opinions expressed herein. I have assumed the
genuineness of all signatures on all documents examined by me, the authenticity
of all documents submitted to me as originals, and the conformity to authentic
originals of all documents submitted to me as certified or photostatic copies.
I have also assumed the due authorization, execution and delivery of all
documents.
Subject to the effectiveness of the Registration Statement under
the Securities Act of 1933, as amended, I am of the opinion that:
1. The Company is a corporation duly incorporated and existing
under the laws of the State of Georgia and is in good standing in that state;
and
2. Each series of the Debt Securities, when duly established
by or pursuant to a resolution of the Board of Directors of the Company or in a
supplemental Indenture, in each case so as not to violate any applicable law or
any agreement or instrument to which the Company is a party or by which it is
bound, and duly executed, authenticated and issued as provided in the Indenture
and delivered against payment, will constitute valid and legally
<PAGE> 2
binding obligations of the Company and enforceable in accordance with its terms
and entitled to the benefits of the Indenture except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to or affecting the rights and
remedies of creditors generally, and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance,
injunctive relief or other equitable remedies, regardless of whether
enforceability is considered in a proceeding in equity or at law.
This opinion is not rendered with respect to any laws other than
the latest codification of the Georgia Business Corporation Code (the "GBCC")
available to me. This opinion has not been prepared by an attorney admitted to
practice in Georgia.
You have informed me that you intend to issue the Debt Securities
from time to time on a delayed or continuous basis, and this opinion is limited
to the laws, including the rules and regulations, as in effect on the date
hereof. I understand that prior to issuing any Debt Securities you will afford
me an opportunity to review the operative documents pursuant to which such Debt
Securities are to be issued (including the applicable Prospectus Supplement)
and will file such supplement or amendment to this opinion (if any) as I may
reasonably consider necessary or appropriate by reason of the terms of such
Debt Securities.
I hereby consent to the filing of this opinion as Exhibit 5.1 to
the aforesaid Registration Statement. I also consent to your filing copies of
this opinion as an exhibit to the Registration Statement with agencies of such
states as you deem necessary in the course of complying with the laws of such
states regarding the offering and sale of the Debt Securities. In giving this
consent, I do not admit that I am in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission.
Very truly yours,
/s/ P. BRUCE BORGHARDT
P. Bruce Borghardt
General Counsel - Corporate Development
<PAGE> 1
Exhibit 12.1
WORLDCOM, INC. AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(In Thousands of Dollars)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------
Historical
---------------------------------------------
1991 1992 1993 1994 1995
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Earnings:
Pretax income (loss) from continuing operations $ 65,646 $ 20,401 $ 198,237 $ (76,108) $ 405,596
Fixed charges, net of capitalized interest 38,116 38,720 58,999 87,455 300,094
--------- --------- --------- --------- ---------
Earnings $ 103,762 $ 59,121 $ 257,236 $ 11,347 $ 705,690
========= ========= ========= ========= =========
Fixed charges:
Interest cost $ 34,495 $ 33,815 $ 38,657 $ 49,203 $ 253,945
Amortization of financing costs 1,018 1,464 1,792 2,086 2,811
Interest factor of rent expense 5,503 4,833 9,967 10,300 15,030
Preferred dividend requirements -- 2,112 11,683 27,766 33,191
--------- --------- --------- --------- ---------
Fixed charges $ 41,016 $ 42,224 $ 62,099 $ 89,355 $ 304,977
========= ========= ========= ========= =========
Deficiency of earnings to fixed charges $ -- $ -- $ -- $ (78,008) $ --
========= ========= ========= ========= =========
Ratio of earnings to fixed charges 2.53:1 1.40:1 4.14:1 0.13:1 2.31:1
========= ========= ========= ========= =========
<CAPTION>
Year Ended For the Nine Months
December 31, Ended September 30,
--------------- ----------------------
Pro Forma Historical Pro Forma
1995 1996 1996
--------- ---------- ---------
<S> <C> <C> <C>
Earnings:
Pretax income (loss) from continuing operations $(206,265) $ 81,088 $(434,684)
Fixed charges, net of capitalized interest 364,742 183,279 293,350
--------- --------- ---------
Earnings $ 158,477 $ 264,367 $(141,334)
========= ========= =========
Fixed charges:
Interest cost $ 312,155 $ 174,971 $ 253,065
Amortization of financing costs 2,811 -- --
Interest factor of rent expense 25,200 13,146 23,131
Preferred dividend requirements 48,255 860 22,852
--------- --------- ---------
Fixed charges $ 388,421 $ 188,977 $ 299,048
========= ========= =========
Deficiency of earnings to fixed charges $(229,944) $ -- $(440,382)
========= ========= =========
Ratio of earnings to fixed charges 0.41:1 1.40:1 N/A
========= ========= =========
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3, to be filed on or around
January 31, 1997, of our report dated March 6, 1996, included in WorldCom,
Inc.'s Form 10-K for the year ended December 31, 1995 and to all references to
our Firm in this registration statement.
ARTHUR ANDERSEN LLP
Jackson, Mississippi,
January 31, 1997.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of WorldCom, Inc. on Form
S-3 of our report dated March 7, 1994 (relating to the financial statements and
financial statement schedule of IDB Communications Group, Inc. for the year
ended December 31, 1993 not separately presented herein) incorporated by
reference in the Prospectus, which is part of this Registration Statement and
to the reference to us under the heading "Experts" in such Prospectus.
/s/ Deloitte & Touche LLP
Los Angeles, California
January 31, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of WorldCom, Inc.
(f/k/a LDDS Communications, Inc.) for the registration of $3,000,000,000 of
debt securities and to the incorporation by reference therein of our report
dated February 2, 1995, with respect to the combined financial statements of
WilTel Network Services for the years ended December 31, 1994 and 1993 included
in the Current Report on Form 8-K/A of LDDS Communications, Inc. dated August
22, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Tulsa, Oklahoma
January 31, 1997
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-3 (File No. 333- ) of WorldCom, Inc. of our report dated February
14, 1996, except for Note 20 as to which the date is April 16, 1996, on our
audits of the consolidated financial statements of MFS Communications Company,
Inc. as of December 31, 1995 and 1994, and for the three years in the period
ended December 31, 1995, which report is included in WorldCom, Inc.'s Current
Report on Form 8-K/A dated August 25, 1996 (filed November 4, 1996).
Coopers & Lybrand
Omaha, Nebraska
January 31, 1997
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3, to be filed on or around
January 31, 1997, of our report dated January 31, 1996 on the Consolidated
Financial Statements of UUNET Technologies, Inc. included in WorldCom, Inc.'s
Current Report on Form 8-K dated August 25, 1996 as amended by Form 8-K/A filed
on November 4, 1996 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
January 30, 1997.
