<PAGE>
As filed with the Securities and Exchange Commission on January 28, 1994
Registration No. 33-50705
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RESOURCE MORTGAGE CAPITAL, INC.
(Exact name of registrant as specified in its charter)
VIRGINIA 52-1549373
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10500 Little Patuxent Parkway
Columbia, Maryland 21044
(410) 715-2000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Thomas H. Potts
President
Resource Mortgage Capital, Inc.
10500 Little Patuxent Parkway
Columbia, Maryland 21044
(410) 715-2000
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Elizabeth R. Hughes, Esq.
Venable, Baetjer and Howard
1800 Mercantile Bank & Trust Bldg.
2 Hopkins Plaza
Baltimore, Maryland 21201
(410) 244-7400
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following Box: -----
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: //x//
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<PAGE>
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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>
Subject to Completion, dated January 28, 1994
PROSPECTUS
Resource Mortgage Capital, Inc.
Common Stock, Preferred Stock, Debt Securities
Warrants to Purchase Common Stock, Warrants
to Purchase Preferred Stock and Warrants to
Purchase Debt Securities
---------------------------
Resource Mortgage Capital, a Virginia corporation (the "Company"),
directly or through agents, dealers or underwriters designated from
time to time, may issue and sell from time to time one or more of the
following types of its securities (the "Securities"): (i) shares of
its common stock, par value $0.01 per share ("Common Stock"); (ii)
shares of its preferred stock, no par value, in one or more series
("Preferred Stock"), (iii) debt securities, in one or more series, any
series of which may be either senior debt securities or subordinated
debt securities (collectively, "Debt Securities" and, as appropriate,
"Senior Debt Securities" or "Subordinated Debt Securities"), (iv)
warrants to purchase shares of Common Stock ("Common Stock Warrants");
(v) warrants to purchase Preferred Stock ("Preferred Stock Warrants");
(vi) warrants to purchase debt securities ("Debt Warrants) and (vii)
any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing types of Securities. The
Securities offered pursuant to this Prospectus may be issued in one or
more series, in amounts, at prices and on terms to be determined at
the time of the offering of each such series. The Securities offered
by the Company pursuant to this Prospectus will be limited to
$200,000,000 aggregate initial public offering price, including the
exercise price of any Common Stock Warrants, Preferred Stock Warrants
and Debt Warrants (collectively, "Securities Warrants").
The specific terms of each offering of Securities in respect of
which this Prospectus is being delivered are set forth in an
accompanying Prospectus Supplement (each, a "Prospectus Supplement")
relating to such offering of Securities. Such specific terms include,
without limitation, to the extent applicable (1) in the case of any
series of Preferred Stock, the specific designations, rights,
preferences, privileges and restrictions of such series of Preferred
Stock, including the dividend rate or rates or the method for
calculating same, dividend payment dates, voting rights, liquidation
preferences, and any conversion, exchange, redemption or sinking fund
provisions; (2) in the case of any series of Debt Securities, the
specific designations, rights and restrictions of such series of Debt
Securities, including without limitation whether the Debt Securities
are Senior Debt Securities or Subordinated Debt Securities, the
currency in which such Debt Securities are denominated and payable,
the aggregate principal amount, stated maturity, method of calculating
and dates for payment of interest and premium, if any, and any
conversion, exchange, redemption or sinking fund provisions; (3) in
the case of the Securities Warrants, the Debt Securities, Preferred
Stock or Common Stock, as applicable, for which each such warrant is
exercisable, and the exercise price, duration, detachability and call
provisions of each such warrant; and (4) in the case of any offering
of Securities, to the extent applicable, the initial public offering
price or prices, listing on any securities exchange, certain federal
income tax consequences and the agents, dealers or underwriters, if
any, participating in the offering and sale of the Securities. If so
specified in the applicable Prospectus Supplement, any series of
Securities may be issued in whole or in part in the form of one or
more temporary or permanent Global Securities, as defined herein.
---------------------------
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.
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THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
---------------------------
The Company may sell all or a portion of any offering of its
Securities through agents, to or through underwriters or dealers, or
directly to other purchasers. See "Plan Distribution." The related
Prospectus Supplement for each offering of Securities sets forth the
name of any agents, underwriters or dealers involved in the sale of
such Securities and any applicable fee, commission, discount or
indemnification arrangement with any such party. See "Use of
Proceeds."
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement. The delivery in any
jurisdiction of this Prospectus together with a Prospectus Supplement
relating to specific Securities shall not constitute an offer in such
jurisdiction of any other Securities covered by this Prospectus but
not described in such Prospectus Supplement.
---------------------------
The date of this Prospectus is , 199--<PAGE>
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE
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 THE ACCOMPANYING PROSPECTUS
SUPPLEMENT NOR ANY DISTRIBUTION OF SECURITIES BEING OFFERED PURSUANT TO
THIS PROSPECTUS AND AN ACCOMPANYING PROSPECTUS SUPPLEMENT SHALL UNDER
ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL,
OR A SOLICITATION OF AN OFFER TO PURCHASE SECURITIES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
---------------------------
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"). Such reports, proxy statements and other information
filed by the Company may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
following regional offices: Chicago Regional Office, Room 3190, 230
South Dearborn Street, Chicago, Illinois 60604; and New York Regional
Office, Room 1400, 75 Park Place, New York, New York 10007. Copies of
such material can also be obtained at prescribed rates from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549. The Common Stock of the Company is
listed on the New York Stock Exchange ("NYSE") and such reports, proxy
statements and other information concerning the Company may also be
inspected at the offices of such Exchange at 20 Broad Street, New York,
New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Securities offered hereby. This Prospectus
does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the
rules and regulations of the Commission. For further information with
respect to the Company and the Securities offered hereby, reference is
made to the Registration Statement and the exhibits and schedules
thereto. Statements contained in this Prospectus as to the contents of
any contract or other documents are not necessarily complete, and in
each instance, reference is made to the copy of such contract or
documents filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the
Company are incorporated in this Prospectus by reference: Annual Report
on Form 10-K for the year ended December 31, 1992, amended as reflected
in the Form 10-K/A for the year ended December 31, 1992; Quarterly
Report on Form 10-Q for the quarter ended March 31, 1993, amended as
reflected in the Form 10-Q/A for the quarter ended March 31, 1993;
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993;
Quarterly Report on Form 10-Q for the quarter ended September 30, 1993
and the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A under the Exchange Act,
including any amendment or report filed to update the description.
<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of all Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents. Any statement
contained 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 accompanying Prospectus Supplement relating to a
specific offering of Securities or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or any accompanying Prospectus
Supplement. Subject to the foregoing, all information appearing in this
Prospectus is qualified in its entirety by the information appearing in
the documents incorporated herein by reference.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such
person, a copy of any and all of the documents described above under
"Incorporation of Certain Documents by Reference", other than exhibits
to such documents, unless such exhibits are specifically incorporated by
reference therein. Written requests should be directed to: Resource
Mortgage Capital, Inc., 10500 Little Patuxent Parkway, Suite 650,
Columbia, Maryland 21044, Attention: Investor Relations, Telephone:
(410) 715-2000.
<PAGE> THE COMPANY
Resource Mortgage Capital, Inc. (the "Company"), incorporated in
Virginia in 1987, operates a mortgage conduit and invests in a portfolio
of residential mortgage securities. The Company's primary strategy is
to use its mortgage conduit operations, which involve the purchase and
securitization of residential mortgage loans, to create investments for
its portfolio. The Company has recently broadened its conduit programs
and loan products within the residential mortgage market in order to
diversify its sources of income and investments. The Company's
principal sources of income are net interest income on its investment
portfolio, gains on the securitization and sale of mortgage loans and
the interest spread realized while the mortgage loans are being
accumulated for securitization.
Mortgage Conduit Operations
As a "mortgage conduit," the Company acts as an intermediary between
the originators of mortgage loans and the permanent investors in the
mortgage loans or the mortgage-related securities backed by such
mortgage loans. The Company purchases and securitizes mortgage loans
that are secured by first liens on single-family residential properties
through its primary conduit activity, the Mortgage Purchase Program
("MPP").
The mortgage loans acquired through the MPP are originated by various
sellers that meet the Company's qualification criteria. These sellers
include savings and loan associations, commercial banks, mortgage banks
and other financial intermediaries. The Company acquires mortgage loans
secured by residential properties throughout the continental United
States. The mortgage loans acquired are generally "nonconforming" first
mortgage loans. Nonconforming mortgage loans are loans which will not
qualify for purchase by the Federal Home Loan Mortgage Corporation
("FHLMC") or Federal National Mortgage Association ("FNMA") or for the
inclusion in a loan guarantee program sponsored by the Government
National Mortgage Association ("GNMA") since they generally have
outstanding principal balances in excess of the guidelines of these
agencies (currently $203,150 for FNMA and FHLMC) or are originated based
upon different underwriting or qualification criteria than are required
by the agencies' programs. The Company focuses on the purchase of
nonconforming loans because such loans are not eligible for
securitization under the agencies' programs; however, such nonconforming
loans may have higher risks than conforming mortgage loans due to their
lower liquidity, different underwriting or qualification criteria, and
higher loan balances. The MPP is a significant source of the Company's
income and creates investments with favorable yields for its investment
portfolio.
When a sufficient volume of mortgage loans is accumulated, the loans
are securitized through the issuance of mortgage-backed securities. The
accumulation period is approximately 60 days and during this period, the
Company is at risk for credit losses on the mortgage loans acquired. In
addition, the Company is exposed to risks of interest rate fluctuations
during the accumulation period and may enter into hedging transactions
to protect against these risks. To date, the mortgage-backed securities
have been structured so as to be rated in one of the two highest rating
categories (i.e. AA or AAA) by at least one of the nationally recognized
rating agencies. In contrast to government issued mortgage-backed
securities in which the principal and interest payments are guaranteed,
securities backed by MPP loans do not have such a guarantee and derive
their rating through adequate levels of credit enhancement. This credit
enhancement can be achieved through the use of mortgage pool insurance
or a senior/subordinated securitization structure.
Historically, the Company has used mortgage pool insurance for credit
enhancement and reserve funds to cover certain risks excluded under such
insurance. With this structure, mortgage loans purchased through the
MPP have a commitment for mortgage pool insurance from a mortgage
insurance company with a claims paying ability in one of the two highest
<PAGE>rating categories. The Company relies upon the credit review and
analysis of each mortgage loan, which is performed by the mortgage
insurer, in deciding to purchase a mortgage loan. Credit losses covered
by the pool insurance policies are borne by the pool insurers to the
limits of their policies and by the security holders if losses exceed
those limits.
To the extent that the Company purchases mortgage loans without a
commitment for mortgage pool insurance, the Company will rely upon its
own underwriting for credit review and analysis in deciding to purchase
these loans and will generally retain a portion of the subordinated
classes of securities that are issued. Thus, the Company has
established an underwriting department and a risk management department.
The underwriting department, with a current staff of approximately 25
personnel, is managed by an individual with cumulative single-family
underwriting experience in excess of 20 years. The risk management
department, which will supervise the resolution of defaulted mortgage
loans not covered by mortgage pool insurance, currently has a staff of
six personnel. While the individuals in each such department have
experience in their respective fields, the Company has not had any
experience underwriting single-family mortgage loans prior to April
1993. To the extent losses are greater than expected, the holders of
the subordinated securities, which may include the Company, will
experience a lower yield (which may be negative) than expected on their
investments.
Given recent developments in the mortgage market, the Company plans to
securitize all or a portion of the single-family loans purchased through
the MPP by the issuance of mortgage securities in a senior/subordinated
structure. Such market developments include the preference of investors
for mortgage-backed securities using the senior/subordinated structure,
the increase in the cost of mortgage pool insurance, and recent
underwriting limitations initiated by the mortgage insurers. With the
senior/subordinated structure, the credit risk is concentrated in the
subordinated classes of the securities, thus allowing the senior classes
of the securities to receive the higher credit ratings. The Company
will establish loss reserves relative to the credit risk retained; the
establishment of such loss reserves will have the effect of reducing
both current results and dividend distributions. The securitization
structure will depend primarily on which form of credit enhancement
(e.g. pool insurance or subordination) has the lower effective cost.
The Company anticipates that subordination will generally have the lower
cost but will require a greater capital investment by the Company
relative to the amount of mortgage loans securitized. The Company
expects that, as a result of purchasing mortgage loans without a
commitment for mortgage pool insurance as well as mortgage loans that
have a commitment for mortgage pool insurance, its MPP volume will be
higher than it would have been if the Company continued to purchase only
mortgage loans that have a commitment for mortgage pool insurance.
By directly underwriting the mortgage loans, the Company expects its
risk related to borrower or lender fraud will be reduced, but that the
Company will have greater risk relating to the cost of selling the
credit risk in the market through the sale of the subordinated classes.
When the Company uses mortgage pool insurance, the cost of such coverage
is generally known in advance of the purchase of a mortgage loan. With
the senior/subordinated structure, the cost of selling the credit risk
into the market will not be known until the sale of the subordinated
securities. Additionally, certain mortgage loans underwritten by the
Company's personnel may have greater credit risk than those mortgage
loans that would qualify under the mortgage pool insurers' current
guidelines. The Company may retain a subordinated class from each
securitization that ranges from .5% to 2% of the principal balance of
the loans that are securitized, which will represent the first-loss
class.
In addition to the MPP, the Company has recently expanded its conduit
activities to take advantage of other market opportunities and further
diversify the Company's sources of income and investments. These
activities include the origination and securitization of multi-family
mortgage loans and the purchase and securitization of certain single-
family mortgage loans which would not qualify under the tighter
underwriting guidelines used for the MPP. Upon securitization of these
mortgage loans, the Company will retain a portion of the securities
<PAGE>created and any securities retained would be subject to credit
risk on the mortgage loans. The Company believes that it will originate
or purchase these mortgage loans at a sufficient yield to compensate for
retaining a portion of the risk.
Portfolio of Mortgage Investments
The Company's investment strategy is to create a diversified portfolio
of mortgage securities that in the aggregate generates stable income for
the Company in a variety of interest rate environments and preserves the
capital base of the Company. The Company generally creates investments
for its portfolio by retaining a portion of the mortgage securities that
are generated from its mortgage conduit activities. The Company
continuously monitors the aggregate projected yield of its investment
portfolio under various interest rate environments and while certain
investments may perform poorly in an increasing interest rate
environment, certain investments may perform well, and others may not
be impacted at all. By creating a portfolio of internally generated
investments, the Company believes it can structure the portfolio to have
more favorable yields in a variety of interest rate environments than if
it purchased mortgage investments in the market.
Other Information
In August 1992, the shareholders approved the change in the Company's
name from "RAC Mortgage Investment Corporation" to "Resource Mortgage
Capital, Inc." This name change was related to the Company's
termination of its prior management agreements with Ryland Acceptance
Corporation and affiliates effective June 16, 1992. Subsequent to such
date, the Company has been operated on a self-managed basis by its own
employees.
The Company, and its qualified real estate investment trust ("REIT")
subsidiaries, have elected to be treated as a REIT for federal income
tax purposes. A REIT must distribute annually substantially all of its
income to shareholders. The Company and its qualified REIT subsidiaries
(collectively, "Resource REIT") generally will not be subject to federal
income tax to the extent that certain REIT qualifications are met.
Certain other affiliated entities which are consolidated with the
Company for financial reporting purposes, are not consolidated for
federal income tax purposes because such entities are not qualified REIT
subsidiaries. All taxable income of these affiliated entities are
subject to federal and state income taxes, where applicable. See
"Federal Income Tax Considerations.''
The principal executive office of the Company is located at 10500
Little Patuxent Parkway, Suite 650, Columbia, Maryland 21044, telephone
number (410) 715-2000.
<PAGE> USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement for
any offering of Securities, the net proceeds from the sale of Securities
offered by the Company will be available for the general corporate
purposes of the Company. These general corporate purposes may include,
without limitation, repayment of maturing obligations, redemption of
outstanding indebtedness, financing future acquisitions (including
acquisitions of mortgage loans and other mortgage-related products),
capital expenditures and working capital. Pending any such uses, the
Company may invest the net proceeds from the sale of any Securities or
may use them to reduce short-term indebtedness. If the Company intends
to use the net proceeds from a sale of Securities to finance a
significant acquisition, the related Prospectus Supplements will
describe the material terms of such acquisition.
If Debt Securities are issued to one or more persons in exchange for
the Company's outstanding debt securities, the accompanying Prospectus
Supplement related to such offering of Debt Securities will set forth
the aggregate principal amount of the outstanding debt securities which
the Company will receive in such exchange and which will cease to be
outstanding, the residual cash payment, if any, which the Company may
receive from such persons or which such persons may receive from the
Company, as appropriate, the dates from which the Company will pay
interest accrued on the outstanding debt securities to be exchanged for
the offered Debt Securities and an estimate of the Company's expenses in
respect of such offering of the Debt Securities.
RATIO OF AVAILABLE EARNINGS TO FIXED CHARGES
The Company's ratio of available earnings to fixed charges was 1:1 or
greater in each of the last five fiscal years and the nine months ended
September 30, 1993. The ratios were as follows:
Nine months
ended
September 30, Year ended December 31,
------------
1993 1992 1991 1990 1989 1988
---- ---- ---- ---- ---- ----
Ratio of
earnings
to fixed
charges (1) 1.68:1 1.68:1 1.58:1 1.63:1 1.00:1 2.67:1
(1) For purposes of computing the ratios, "available earnings" consist
of net earnings plus interest and debt expense and excludes fixed
charges related to CMOs issued by the Company which are nonrecourse to
the Company. This sum is divided by the total interest and debt expense
to determine the ratio of available earnings to fixed charges.
These ratios represent a measure of the ability to meet debt service
obligations from funds generated from operations.
DESCRIPTION OF SECURITIES
The following is a brief description of the material terms of the
Company's capital stock. This description does not purport to be
complete and is subject in all respects to applicable Virginia law and
to the provisions of the Company's Articles of Incorporation and Bylaws,
copies of which are on file with the Commission as described under
"Available Information" and are incorporated by reference herein.
General
The Company may offer under this Prospectus one or more of the
following categories of its Securities: (i) shares of its Common Stock,
par value $0.01 per share; (ii) shares of its Preferred Stock, no par
value, in one or more series; (iii) Debt Securities, in one or more
series, any series of which may be either Senior Debt Securities or
Subordinated Debt Securities; (iv) Common Stock Warrants; (v) Preferred
Stock Warrants; (vi) Debt Warrants; and (vii) any combination of the
foregoing, either individually or as units consisting of one or more of
the types of Securities described in clauses (i) through (vi). The
<PAGE>terms of any specific offering of Securities, including the terms
of any units offered, will be set forth in a Prospectus Supplement
relating to such offering.
The Company's authorized equity capitalization consists of 50 million
shares of Common Stock, par value $0.01 per share and 50 million shares
of preferred stock, no par amount. Neither the holders of the Common
Stock nor of any preferred stock, now or hereafter authorized, will be
entitled to any preemptive or other subscription rights. The Common
Stock is listed on the New York Stock Exchange. The Company intends to
list any additional shares of its Common Stock which are issued and sold
hereunder. The Company may list any series of its Preferred Stock which
are offered and sold hereunder, as described in the Prospectus
Supplement relating to such series of Preferred Stock.
Common Stock
As of November 30, 1993, there were 19,081,412 outstanding shares of
Common Stock held by 3,847 holders of record. Holders of Common Stock
are entitled to receive dividends when, as and if declared by the Board
of Directors, out of funds legally available therefor. Dividends on any
outstanding shares of preferred stock must be paid in full before
payment of any dividends on the Common Stock. Upon liquidation,
dissolution or winding up of the Company, holders of Common Stock are
entitled to share ratably in assets available for distribution after
payment of all debts and other liabilities and subject to the prior
rights of any holders of any preferred stock then outstanding.
Holders of Common Stock are entitled to one vote per share with
respect to all matters submitted to a vote of shareholders and do not
have cumulative voting rights. Accordingly, holders of a majority of
the Common Stock entitled to vote in any election of directors may elect
all of the directors standing for election, subject to the voting rights
(if any) of any series of preferred stock that may be outstanding from
time to time. The Company's Articles of Incorporation and Bylaws
contain no restrictions on the repurchase by the Company of shares of
the Common Stock. All the outstanding shares of Common Stock are
validly issued, fully paid and nonassessable.
Preferred Stock
The Board of Directors is authorized to designate with respect to each
series of preferred stock the number of shares in each such series, the
dividend rates and dates of payment, voluntary and involuntary
liquidation preferences, redemption prices, whether or not dividends
shall be cumulative and, if cumulative, the date or dates from which the
same shall be cumulative, the sinking fund provisions, if any, for
redemption or purchase of shares, the rights, if any, and the terms and
conditions on which shares can be converted into or exchanged for shares
of another class or series, and the voting rights, if any. As of the
date hereof, there were no shares of preferred stock issued and
outstanding.
Any preferred shares issued will rank prior to the Common Stock as to
dividends and as to distributions in the event of liquidation,
dissolution or winding up of the Company. The ability of the Board of
Directors to issue preferred stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes,
could, among other things, adversely affect the voting powers of holders
of Common Stock.
Securities Warrants
General
The Company may issue Securities Warrants for the Purchase of Common
Stock, Preferred Stock or Debt Securities. Such warrants are referred
to herein as Common Stock Warrants, Preferred Stock Warrants or Debt
Warrants, as appropriate. Securities Warrants may be issued
independently or together with any other Securities covered by the
Registration Statement and offered by this Prospectus and any
accompanying Prospectus Supplement and may be attached to or separate
from such other Securities. Each series of Securities Warrants will be
issued under a separate agreement (each, a "Securities Warrant
Agreement") to be entered into between the Company and a bank or trust
company, as agent (each, a "Securities Warrant Agent"), all as set forth
in the Prospectus Supplement relating to the particular issue of offered
<PAGE>Securities Warrants. Each issue of Securities Warrants will be
evidenced by warrant certificates (the "Securities Warrant
Certificates"). The Securities Warrant Agent will act solely as an
agent of the Company in connection with the Securities Warrant
Certificates and will not assume any obligation or relationship of
agency or trust for or with any holders of Securities Warrant
Certificates or beneficial owners of Securities Warrants. Copies of the
definitive Securities Warrant Agreements and Securities Warrant
Certificates will be filed with the Commission by means of a Current
Report on Form 8-K in connection with the offering of such series of
Securities Warrants.
If Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Securities Warrants,
including in the case of Securities Warrants for the purchase of Debt
Securities, the following where applicable: (i) the offering price; (ii)
the currencies in which such Debt Warrants are being offered; (iii) the
designation, aggregate principal amount, currencies, denominations and
terms of the series of Debt Securities purchasable upon exercise of such
Debt Warrants; (iv) the designation and terms of any Securities with
which such Debt Warrants are being offered and the number of such Debt
Warrants being offered with each such Security; (v) the date on and
after which such Debt Warrants and the related Securities will be
transferable separately; (vi) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Debt Warrant and the
price at which the currencies in which such principal amount of Debt
Securities of such series may be purchased upon such exercise; (vii) the
date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire (the "Expiration Date");
(viii) whether the Debt Warrant will be issued in registered or bearer
form; (ix) certain federal income tax consequences; and (x) any other
material terms of such Debt Warrants.
In the case of Securities Warrants for the purchase of Preferred Stock
or Common Stock, the applicable Prospectus Supplement will describe the
terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise of such Securities Warrants, and in the case
of Securities Warrants for Preferred Stock, the designation, aggregate
number and terms of the series of Preferred Stock purchasable upon
exercise of such Securities Warrants; (iii) the designation and terms of
the Securities with which such Securities Warrants are being offered and
the number of such Securities Warrants being offered with each such
Security; (iv) the date on and after which such Securities Warrants and
the related Securities will be transferable separately; (v) the number
of shares of Preferred Stock or shares of Common Stock purchasable upon
exercise of each such Securities Warrant and the price at which such
number of shares of Preferred Stock of such series or shares of Common
Stock may be purchased upon such exercise; (vi) the date on which the
right to exercise such Securities Warrants shall commence and the
Expiration Date on which such right shall expire; (vii) certain federal
income tax consequences; and (viii) any other material terms of such
Securities Warrants.
Securities Warrant Certificates may be exchanged for new Securities
Warrant Certificates of different denominations, may (if in registered
form) be presented for registration of transfer, and may be exercised at
the corporate trust office of the appropriate Securities Warrant Agent
or other office indicated in the applicable Prospectus Supplement.
Prior to the exercise of any Securities Warrant to purchase Debt
Securities, holders of such Debt Warrants will not have any of the
rights of Holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal, premium, if any,
or interest, if any, on the Debt Securities purchasable upon such
exercise or to enforce covenants in the applicable Indenture. Prior to
the exercise of any Securities Warrants to purchase Preferred Stock or
Common Stock, holders of such Preferred Stock Warrants or Common Stock
Warrants will not have any rights of holders of the respective Preferred
Stock or Common Stock purchasable upon such exercise, including the
right to receive payments of dividends, if any, on the Preferred Stock
or Common Stock purchasable upon such exercise or to exercise any
applicable right to vote.
<PAGE>Exercise of Securities Warrants
Each Securities Warrant will entitle the holder thereof to purchase
such principal amount of Debt Securities or number of shares of
Preferred Stock or shares of Common Stock, as the case may be, at such
exercise price as shall in each case be set forth in, or calculable
from, the Prospectus Supplement relating to the offered Securities
Warrants. After the close of business on the Expiration Date (or such
later date to which such Expiration Date may be extended by the
Company), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant Agent payment, as provided in the applicable Prospectus
Supplement, of the amount required to purchase the applicable Debt
Securities, Preferred Stock or Common Stock purchasable upon such
exercise together with certain information set forth on the reverse side
of the Securities Warrant Certificate. Upon receipt of such payment and
the definitive Securities Warrant Certificates properly completed and
duly executed at the corporate trust office of the Securities Warrant
Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver
the applicable Debt Securities, Preferred Stock or Common Stock
purchasable upon such exercise. If fewer than all of the Securities
Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the
remaining amount of Securities Warrants.
Amendments and Supplements to Securities Warrant Agreements
Each Securities Warrant Agreement may be amended or supplemented
without the consent of the holders of the Securities Warrants issued
thereunder to effect changes that are not inconsistent with the
provisions of the Securities Warrants and that do not adversely affect
the interests of the holders of the Securities Warrants.
Common Stock Warrant Adjustments
Unless otherwise indicated in the applicable Prospectus Supplement,
the exercise price of, and the number of shares of Common Stock covered
by, a Common Stock Warrant are subject to adjustment in certain events,
including: (i) the issuance of Common Stock as a dividend or
distribution on the Common Stock; (ii) subdivisions and combinations of
the Common Stock; (iii) the issuance to all holders of Common Stock of
certain rights or warrants entitling them to subscribe for or purchase
Common Stock within the number of days, specified in the applicable
Prospectus Supplement, after the date fixed for the determination of the
stockholders entitled to receive such rights or warrants, at less than
the current market price (as defined in the Securities Warrant Agreement
governing such series of Common Stock Warrants); and (iv) the
distribution to all holders of Common Stock of evidences of indebtedness
or assets of the Company (excluding certain cash dividends and
distributions described below). The terms of any such adjustment will
be specified in the related Prospectus Supplement for such Common Stock
Warrants.
<PAGE>No Rights as Stockholders
Holders of Common Stock Warrants will not be entitled by virtue of
being such holders, to vote, to consent, to receive dividends, to
receive notice as stockholders with respect to any meeting of
stockholders for the election of directors of the Company of any other
matter, or to exercise any rights whatsoever as stockholders of the
Company.
Existing Securities Holders
The Company may issue, as a dividend at no cost, such Securities
Warrants to holders of record of the Company's Securities or any class
thereof on the applicable record date. If Securities Warrants are so
issued to existing holders of Securities, the applicable Prospectus
Supplement will describe, in addition to the terms of the Securities
Warrants and the Securities issuable upon exercise thereof, the
provisions, if any, for a holder of such Securities Warrants who validly
exercises all Securities Warrants issued to such holder to subscribe for
unsubscribed Securities (issuable pursuant to unexercised Securities
Warrants issued to other holders) to the extent such Securities Warrants
have not been exercised.
Debt Securities
General
The Company may offer one or more series of its Debt Securities
representing general, unsecured obligations of the Company. Any series
of Debt Securities may either (1) rank prior to all subordinated
indebtedness of the Company and pari passu with all other unsecured
indebtedness of the Company outstanding on the date of the issuance of
such Debt Securities ("Senior Debt Securities") or (2) be subordinated
in light of payments to certain other obligations of the Company
outstanding on the date of issuance ("Subordinated Debt Securities").
In this Prospectus, any indenture relating to Subordinated Debt
Securities is referred to as a "Subordinated Indenture" and the term
"Indenture" refers to Senior and Subordinated Indentures, collectively.
The aggregate principal amount of Debt Securities which may be issued
by the Company will be set from time to time by the Board of Directors.
Further, the amount of Debt Securities which may be offered by this
Prospectus will be subject to the aggregate initial offering price of
Securities specified in the Registration Statement. Each Indenture will
permit the issuance of an unlimited amount of Debt Securities thereunder
from time to time in one or more series. Additional debt securities may
be issued pursuant to another registration statement for issuance under
any Indenture. Any offering of Debt Securities may be denominated in
any currency composite designated by the Company.
The following description of the Debt Securities which may be offered
by the Company hereunder describes certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms and provisions of the Debt Securities and the
extent to which the following general provisions may apply to such
offering of Debt Securities will be described in the accompanying
Prospectus Supplement relating to such offering of Debt Securities. The
following descriptions of certain provisions of the Indentures do not
purport to be complete and are qualified in their entirety by reference
to the form of Senior Indenture or Subordinated Indenture, as
appropriate. The definitive Indenture relating to each offering of Debt
Securities will be filed with the Commission by means of a Current
Report on Form 8-K in connection with the offering of such Debt
Securities. All article and section references appearing herein are
references to the articles and sections of the appropriate Indenture
and, unless defined herein, all capitalized terms have the respective
meanings specified in the appropriate Indenture.
The Prospectus Supplement relating to any offering of Debt Securities
will set forth the following terms and other information to the extent
applicable with respect to the Debt Securities being offered thereby;
(1) the designation, aggregate principal amount, authorized
denominations and priority of such Debt Securities; (2) the price
(expressed as a percentage of the aggregate principal amount of such
Debt Securities) at which such Debt Securities will be issued; (3) the
currency or currency units for which the Debt Securities may be
<PAGE>purchased and in which the principal of , and any interest on such
Debt Securities may be payable; (4) the stated maturity of such Debt
Securities or means by which a maturity date may be determined; (5) the
rate at which such Debt Securities will bear interest or the method by
which such rate of interest is to be calculated (which rate may be zero
in the case of certain Debt Securities issued at a price representing a
discount from the principal amount payable at maturity); (6) the periods
during which such interest will accrue, the dates on which such interest
will be payable (or the method by which such dates may be determined;
including without limitation that such rate of interest may bear an
inverse relationship to some index or standard) and the circumstances
under which the Company may defer payment of interest; (7) redemption
provisions, including any optional redemption, required repayment or
mandatory sinking fund provisions; (8) any terms by which such Debt
Securities may be convertible into shares of the Company's Common Stock,
Preferred Stock or any other Securities of the Company, including a
description of the Securities into which any such Debt Securities are
convertible; (9) any terms by which the principal of such Debt
Securities will be exchangeable for any other Securities of the Company;
(10) whether such Debt Securities are issuable as definitive Fully-
Registered Securities (as defined below) or Global Securities and, if
Global Securities are to be issued, the terms thereof, including the
manner in which interest thereon will be payable to the beneficial
owners thereof and other book-entry procedures, any terms for exchange
of such Global Securities into definitive Fully-Registered Securities
(as defined below) and any provisions relating to the issuance of a
temporary Global Security; (11) any additional restrictive covenants
included for the benefit of the holders of such Debt Securities; (12)
any additional events of default provided with respect to such Debt
Securities; (13) the terms of any Securities being offered together with
such Debt Securities, (14) whether such Debt Securities represent
general, unsecured obligations of the Company and (15) any other
material terms of such Debt Securities.
If any of the Debt Securities are sold for foreign currency units, the
restrictions, elections, tax consequences, specific terms, and other
information with respect to such issue of Debt Securities and such
currencies or currency units will be set forth in the Prospectus
Supplement relating to thereto.
Indenture Provisions
The Debt Securities may be issued in definitive, fully registered form
without coupons ("Fully Registered Securities"), or in a form registered
as to principal only with coupons or in bearer form with coupons.
Unless otherwise specified in the Prospectus Supplement, the Debt
Securities will only be Fully Registered Securities. In addition, Debt
Securities of a series may be issuable in the form of one or more Global
Securities, which will be denominated in an amount equal to all or a
portion of the aggregate principal amount of such Debt Securities. See
"Global Securities" below.
One or more series of Debt Securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or
interest at a rate that at the time of issuance is below market rates.
Federal income tax consequences and special considerations applicable to
any such series will be described in the Prospectus Supplement relating
thereto.
Unless otherwise indicated in the related Prospectus Supplement for a
series of Debt Securities, there are no provisions contained in the
Indentures that would afford holders of Debt Securities protection in
the event of a highly leveraged transaction involving the Company.
Global Securities. Any series of Debt Securities may be issued in
whole or in part in the form of one or more Global Securities that will
be deposited with, or on behalf of, the Depositary identified in the
Prospectus Supplement relating to such series. Unless and until it is
exchanged in whole or in part for Debt Securities in individually
certificated form, a Global Security may not be transferred except as a
whole to a nominee of the Depositary for such Global Security, or by a
nominee for the Depositary to the Depositary, or to a successor of the
Depositary or a nominee of such successor.
The specific terms of the Depositary arrangement with respect to any
series of Debt Securities and the rights of, and limitations on, owners
of beneficial interests in a Global Security representing all or a
portion of a series of Debt Securities will be described in the
Prospectus Supplement relating to such series.
<PAGE> Modification of Indentures. Unless otherwise specified in the
related Prospectus Supplement, each Indenture, the rights and
obligations of the Company, and the rights of the Holders may be
modified with respect to one or more series of Debt Securities issued
under such Indenture with the consent of the Holders of not less than a
majority in principal amount of the outstanding Debt Securities of each
such series affected by the modification or amendment. No modification
of the terms of payment of principal or interest, and no modification
reducing the percentage required for modification, is effective against
any Holder without his consent.
Events of Default. Unless otherwise specified in the related
Prospectus Supplement, each Indenture, will provide that the following
are Events of Default with respect to any series of Debt Securities
issued thereunder: (1) default in the payment of the principal of any
Debt Security of such series when and as the same shall be due and
payable; (2) default in making a sinking fund payment, if any, when and
as the same shall be due and payable by the terms of the Debt Securities
of such series; (3) default for 30 days in payment of any installment of
interest on any Debt Securities of such series; (4) default for a
specified number of days after notice in the performance of any other
covenants in respect of the Debt Securities of such series contained in
the Indenture; (5) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator, or
trustee of the Company or its property; and (6) any other Event of
Default provided in the applicable supplemental indenture under which
such series of Debt Securities is issued. An Event of Default with
respect to a particular series of Debt Securities issued under an
Indenture will not necessarily constitute an Event of Default with
respect to any other series of Debt Securities issued under such
Indenture. The trustee under an Indenture may withhold notice to the
Holders of any series of Debt Securities of any default with respect to
such series (except in the payment of principal or interest) if it
considers such withholding in the interests of such Holders.
If an Event of Default with respect to any series of Debt Securities
shall have occurred and be continuing, the appropriate trustee under the
Indenture or the Holders of not less than 25% in the aggregate principal
amount of the Debt Securities of such series may declare the principal,
or in the case of discounted Debt Securities, such portion thereof as
may be described in the Prospectus Supplement, of all the Debt
Securities of such series to be due and payable immediately.
Within four months after the close of each fiscal year, the Company
will file with each trustee under the indentures a certificate, signed
by specified officers, stating whether or not such officers have
knowledge of any default, and, if so, specifying each such default and
the nature thereof.
Subject to provisions relating to its duties in case of default, a
trustee under the Indentures shall be under no obligation to exercise
any of its rights or powers under the applicable Indenture at the
request, order, or direction of any Holder, unless such Holders shall
have offered to such trustee reasonable indemnity. Subject to such
provisions for indemnification, the Holders of a majority in principal
amount of the Debt Securities of any series may direct the time, method,
and place of conducting any proceeding for any remedy available to the
appropriate trustee, or exercising any trust or power conferred upon
such trustee, with respect to the Debt Securities of such series.
Payment and Transfer. Principal of, and premium and interest, if any,
on, fully Registered Securities will be payable at the Place of Payment
as specified in the applicable Prospectus Supplement, provided that
payment of interest, if any, may be made, unless otherwise provided in
the applicable Prospectus Supplement, by check mailed to the person in
whose names such Debt Securities are registered at the close of business
on the day or days specified in the Prospectus Supplement or transfer to
an account maintained by the payee located inside the United States.
The principal of, and premium and interest, if any, on, Debt Securities
in other forms will be payable in the manner and at the place or places
as designated by the Company and specified in the applicable Prospectus
Supplement. Unless otherwise provided in the Prospectus Supplement,
payment of interest may be made, in the case of a Bearer Security by the
transfer to an account maintained by the payee with a bank outside the
United States.
Fully Registered Securities may be transferred or exchanged at the
corporate trust office of the trustee or any other office or agency
maintained by the Company for such purposes, subject to the limitations
in the applicable Indenture, without the payment of any service charge
except for any tax or governmental charge incidental thereto.
Provisions with respect to the transfer and exchange of Debt Securities
in other forms will be set forth in the applicable Prospectus
Supplement.
<PAGE> Defeasance. The Indentures provide that each will cease to be
of further effect with respect to a certain series of Debt Securities
(except for certain obligations to register the transfer or exchange of
Securities) if (a) the Company delivers to the Trustee for the
Securities of such series for cancellation of all Securities of all
series and the coupons, if any, appertaining thereto, or (b) if the
Company deposits into trust with the Trustee money or United States
government obligations, that, through the payment of interest thereon
and principal thereof in accordance with their terms, will provide money
in an amount sufficient to pay all of the principal of, and interest on,
the Securities of such series on the dates such payments are due or
redeemable in accordance with the terms of such Securities.
Certain Charter and Virginia Law Provisions
Unless the amendment effects an extraordinary transaction, the
Articles of Incorporation of the Company may be amended with the
approval of the holders of a majority of the outstanding shares of
Common Stock, subject to the voting rights (if any) of any series of
preferred stock that may be outstanding from time to time. Amendments
that effect extraordinary transactions, which include mergers, share
exchanges, a sale of substantially all the assets of the Company, the
dissolution of the Company or the share ownership restrictions described
below, require the approval of the holders of more than two-thirds of
the outstanding shares of Common Stock (subject to any voting rights of
any series of preferred stock outstanding).
Special meetings of the shareholders of the Company may be called by a
majority of the Board of Directors, a majority of the unaffiliated
directors, the Chairman of the Board, the President or generally by
shareholders holding at least 25% of the outstanding shares of Common
Stock entitled to be voted at the meeting.
Virginia law and the Articles of Incorporation of the Company provide
that the directors and officers of the Company shall have no liability
to the Company or its shareholders in certain actions brought by or on
be half of shareholders of the Company unless such officer or director
has engaged in willful misconduct or violations of federal or state
securities laws and certain other activities.
Repurchase of Shares and Restrictions on Transfer
Two of the requirements for qualification for the tax benefits
accorded a REIT under the Internal Revenue Code of 1986, as amended
("the Code"), are that (i) during the last half of each taxable year not
more than 50% of the outstanding shares may be owned directly or
indirectly by five or fewer individuals and (ii) there must be at least
100 shareholders for at least 335 days in each taxable year. Those
requirements apply for all taxable years after the year in which a REIT
elects REIT status.
The Articles of Incorporation prohibit any person or group of persons
from acquiring or holding, directly or indirectly, ownership of a number
of shares of Common Stock in excess of 9.8% of the outstanding shares.
Shares of Common Stock owned by a person or group of persons in excess
of such amounts are referred to as "Excess Shares.'' For this purpose
the term "ownership'' is defined in accordance with the Code, the
constructive ownership provisions of Section 544 of the Code and Rule
13d-3 promulgated under the Exchange Act, and the term "group'' is
defined to have the same meaning as that term has for purposes of
Section 13(d)(3) of the Exchange Act. Accordingly, shares of Common
Stock owned or deemed to be owned by a person who individually owns less
than 9.8% of the shares outstanding may nevertheless be Excess Shares.
For purposes of determining whether a person holds Excess Shares, a
person or group will be treated as owning not only shares of Common
Stock actually or beneficially owned, but also any shares of Common
Stock attributed to such person or group under the constructive
ownership provisions contained in Section 544 of the Code.
The Articles of Incorporation provide that in the event any person
acquires Excess Shares, each Excess Share may be redeemed at any time by
the Company at the closing price of a share of Common Stock on the New
York Stock Exchange on the last business day prior to the redemption
<PAGE>date. From and after the date fixed for redemption of Excess
Shares, such shares shall cease to be entitled to any distribution and
other benefits, except only the right to payment of the redemption price
for such shares.
Under the Articles of Incorporation any acquisition of shares that
would result in failure to qualify as a REIT under the Code is void to
the fullest extent permitted by law, and the Board of Directors is
authorized to refuse to transfer shares to a person if, as a result of
the transfer, that person would own Excess Shares. Prior to any
transfer or transaction which, if consummated, would cause a shareholder
to own Excess Shares, and in any event upon demand by the Board of
Directors, a shareholder is required to file with the Company an
affidavit setting forth, as to that shareholder, the information
required to be reported in returns filed by shareholders under Treasury
Regulation Section 1.857-9 under the Code and in reports filed under
Section 13(d) of the Exchange Act. Additionally, each proposed
transferee of shares of Common Stock, upon demand of the Board of
Directors, also may be required to file a statement or affidavit with
the Company setting forth the number of shares already owned by the
transferee and any related person.
The Common Stock may not be purchased by nonresident aliens or foreign
entities. In addition, the Common Stock may not be held by
"disqualified organizations'' within the meaning of Section 860E(e)(5)
of the Code, which generally includes governmental entities and other
tax-exempt persons not subject to the tax on unrelated business taxable
income.
Transfer Agent and Registrar
The transfer agent and the registrar for the Company's Common Stock is
First Union National Bank of North Carolina, Charlotte, North Carolina.
PLAN OF DISTRIBUTION
The Company may sell Securities (1) through underwriters or dealers,
(2) directly to one or more purchasers, or (3) through agents. A
Prospectus Supplement will set forth the terms of the offering of the
Securities offered thereby, including the name or names of any
underwriters, the purchase price of the Securities, and the proceeds to
the Company from the sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to
dealers, and any securities exchange on which the Securities may be
listed. Only underwriters so named in the Prospectus Supplement are
deemed to be underwriters in connection with the Securities offered
thereby.
If underwriters are used in the sale in a firm commitment
underwriting, the Securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Securities will be
subject to certain conditions precedent, and the underwriters will be
obligated to purchase all the Securities of the series offered by the
Company's Prospectus Supplement if any of the Securities are purchased.
Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to
time.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. The Securities offered
hereby may also be sold from time to time through agents for the Company
by means of (i) ordinary broker's transactions, (ii) block transactions
(which may involve crosses) in accordance with the rules of the
Exchanges, in which such agents may attempt to sell Securities as agent
but may purchase and resell all or a portion of the blocks as principal,
(iii) "fixed price offerings" in accordance with the rules of the
Exchanges, or (iv) a combination of any such methods of sale. In
connection therewith, distributors' or sellers' commissions may be paid
or allowed which will not exceed those customary in the types of
transactions involved. A Prospectus Supplement sets forth the terms of
any such "fixed price offering," "exchange distributions" and "special
offerings." If the agent purchases Securities as principal, it may sell
such Securities by any of the methods described above. Any agent
involved in the offering and sale of Securities in respect of which this
Prospectus is delivered is named, and any commissions payable by the
Company to such agent are set forth, in the Prospectus Supplement.
<PAGE>Unless otherwise indicated herein or in the Prospectus Supplement,
any such agent is acting on a best-efforts basis for the period of its
appointment.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters, or dealers to solicit offers by certain
institutional investors to purchase Securities providing for payment and
delivery on a future date specified in the Prospectus Supplement. There
may be limitations on the minimum amount which may be purchased by any
such institutional investor or on the portion of the aggregate principal
amount of the particular Securities which may be sold pursuant to such
arrangements. Institutional investors to which such offers may be made,
when authorized, include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
charitable institutions, and such other institutions as may be approved
by the Company. The obligations of any such purchasers pursuant to such
delayed delivery and payment arrangements will not be subject to any
conditions except (1) the purchase by an institution of the particular
Securities shall not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such institution
is subject, and (2) if the particular Securities are being sold to
underwriters, the Company shall have sold to such underwriters the total
principal amount of such Securities less the principal amount thereof
covered by such arrangements. Underwriters will not have any
responsibility in respect of the validity of such arrangements or the
performance of the Company or such institutional investors thereunder.
Agents 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 of 1933, or
to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Agents and
underwriters may engage in transactions with, or perform services for,
the Company in the ordinary course of business.
FEDERAL INCOME TAX CONSIDERATIONS
Federal Income Taxation of Shareholders
The following section is a general summary of certain federal income
tax aspects of an investment in the Company that should be considered by
prospective shareholders. The discussion in this section is based on
existing provisions of the Code, existing and proposed Treasury
regulations, existing court decisions, and existing rulings and other
administrative interpretations. There can be no assurance that future
Code provisions or other legal authorities will not alter significantly
the tax consequences described below. No rulings have been obtained
from the Internal Revenue Service concerning any of the matters
discussed in this section.
The Company and its qualified REIT subsidiaries (collectively
"Resource REIT") believes it has complied, and intends to comply in the
future, with the requirements for qualification as a REIT under the
Code. The federal income tax provisions governing REITs and their
shareholders are extremely complicated, and what follows is only a very
brief and general summary of the most important considerations for
shareholders. ACCORDINGLY, PROSPECTIVE INVESTORS ARE URGED TO CONSULT
THEIR OWN TAX ADVISORS CONCERNING THE FEDERAL, STATE AND LOCAL TAX
CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF SHARES OF THE
COMPANY.
General Considerations
Resource REIT believes it has complied, and intends to comply in the
future, with the requirements for qualification as a REIT under the
Code. Venable, Baetjer and Howard, counsel to the Company, has given
the Company its opinion to the effect that, as of the date hereof and
based on the various representations made to it by the Company with
respect to its income, assets, and activities since its inception, and
subject to certain assumptions and qualifications stated in such
opinion, (i) Resource REIT qualifies for treatment as a REIT under the
Code and (ii) the organization and contemplated method of operation of
Resource REIT are such as to enable it to continue so to qualify in
subsequent years, provided the various operational requirements of REIT
status are satisfied in those years. However, investors should be aware
that opinions of counsel are not binding on the courts or the Internal
Revenue Service. To the extent that Resource REIT qualifies as a REIT
<PAGE>for federal income tax purposes, it generally will not be subject
to federal income tax on the amount of its income or gain that is
distributed to shareholders. However, a nonqualified REIT subsidiary of
the Company , which operates the MPP and is included in the Company's
consolidated GAAP financial statements, is not a qualified REIT
subsidiary. Consequently, all of the nonqualified REIT subsidiary's
taxable income is subject to federal and state income taxes.
The REIT rules generally require that a REIT invest primarily in real
estate-related assets, its activities be passive rather than active, and
it distribute annually to its shareholders a high percentage of its
taxable income. The Company could be subject to a number of taxes if it
failed to satisfy those rules or if it acquired certain types of
income-producing real property through foreclosure. Although no
complete assurances can be given, the Company does not expect that it
will be subject to material amounts of such taxes.
Resource REIT's failure to satisfy certain Code requirements could
cause the Company to lose its status as a REIT. If Resource REIT failed
to qualify as a REIT for any taxable year, it would be subject to
federal income tax (including any applicable minimum tax) at regular
corporate rates and would not receive deductions for dividends paid to
shareholders. As a result, the amount of after-tax earnings available
for distribution to shareholders would decrease substantially. While
the Board of Directors intends to cause Resource REIT to operate in a
manner that will enable it to qualify as a REIT in all future taxable
years, there can be no certainty that such intention will be realized
because, among other things, qualification hinges on the conduct of the
business of Resource REIT.
Taxation of Distributions by the Company
Assuming that Resource REIT maintains its status as a REIT, any
distributions that are properly designated as "capital gain dividends''
generally will be taxed to shareholders as long-term capital gains,
regardless of how long a shareholder has owned his shares. Any other
distributions out of Resource REIT current or accumulated earnings and
profits will be dividends taxable as ordinary income. Shareholders will
not be entitled to dividends-received deductions with respect to any
dividends paid by Resource REIT. Distributions in excess of Resource
REIT's current or accumulated earnings and profits will be treated as
tax-free returns of capital, to the extent of the shareholder's basis in
his shares of Common Stock, and as gain from the disposition of shares,
to the extent they exceed such basis. Shareholders may not include on
their own returns any of Resource REIT ordinary or capital losses.
Distributions to shareholders attributable to "excess inclusion income''
of Resource REIT will be characterized as excess inclusion income in the
hands of the shareholders. Excess inclusion income can arise from
Resource REIT's holdings of residual interests in real estate mortgage
investment conduits and in certain other types of mortgage-backed
security structures created after 1991. Excess inclusion income
constitutes unrelated business taxable income ("UBTI'') for tax-exempt
entities (including employee benefit plans and individual retirement
accounts), and it may not be offset by current deductions or net
operating loss carryovers. In the unlikely event that the Company's
excess inclusion income is greater than its taxable income, the
Company's distribution would be based on the Company's excess inclusion
income. In 1992 the Company's excess inclusion income was less than 10%
of its taxable income. Although Resource REIT itself would be subject
to a tax on any excess inclusion income that would be allocable to a
"disqualified organization'' holding its shares, Resource REIT's by-laws
provide that disqualified organizations are ineligible to hold Resource
REIT's shares.
Dividends paid by Resource REIT to organizations that generally are
exempt from federal income tax under Section 501(a) of the Code should
not be taxable to them as UBTI except to the extent that (i) purchase of
Shares of Resource REIT was financed by "acquisition indebtedness,''
(ii) such dividends constitute excess inclusion income or (iii) with
respect to the trusts owning more than 10% of the shares of Resource
REIT, under certain circumstances a portion of such dividend is
attributable to UBTI. Because an investment in Resource REIT may give
rise to UBTI or trigger the filing of an income tax return that
otherwise would not be required, tax-exempt organizations should give
careful consideration to whether an investment in Resource REIT is
prudent.
Taxation of Dispositions of Shares of the Common Stock
<PAGE> In general, any gain or loss realized upon a taxable disposition
of shares will be treated as long-term capital gain or loss if the
shares have been held for more than twelve months and otherwise as
short-term capital gain or loss. However, any loss realized upon a
taxable disposition of shares held for six months or less will be
treated as long-term capital loss to the extent of any capital gain
dividends received with respect to such shares. All or a portion of any
loss realized upon a taxable disposition of Shares of Resource REIT may
be disallowed if other Shares of Resource REIT are purchased (under a
dividend reinvestment plan or otherwise) within 30 days before or after
the disposition.
Backup Withholding
Resource REIT generally is required to withhold and remit to the
United States Treasury 31% of the dividends paid to any shareholder who
(i) fails to furnish Resource REIT with a correct taxpayer
identification number, (ii) has notified Resource REIT that a
shareholder has underreported dividend or interest income to the
Internal Revenue Service, or (iii) under certain circumstances, fails to
certify to Resource REIT that he is not subject to backup withholding.
An individual's taxpayer identification number is his social security
number.
Debt Securities
The Debt Securities will be taxable as indebtedness. Interest and
original issue discount, if any, on a Debt Security will be treated as
ordinary income to a holder. Any special tax considerations applicable
to a Debt Security will be described in the related Prospectus
Supplement.
Exercise of Securities Warrants
Upon a holder's exercise of a Securities Warrant, the holder will, in
general, (i) not recognize any income, gain or loss for federal income
tax purposes, (ii) receive an initial tax basis in the Security received
equal to the sum of the holder's tax basis in the exercised Securities
Warrant and the exercise price paid for such Security and (iii) have a
holding period for the Security received beginning on the date of
exercise.
Sale or Expiration of Securities Warrants
If a holder of a Securities Warrant sells or otherwise disposes of
such Securities Warrant (other than by its exercise), the holder
generally will recognize capital gain or loss (long term capital gain or
loss if the holder's holding period for the Securities Warrant exceeds
twelve months on the date of disposition; otherwise, short term capital
gain or loss) equal to the difference between (i) the cash and fair
market value of other property received and (ii) the holder's tax basis
(on the date of disposition) in the Securities Warrant sold. Such a
holder generally will recognize a capital loss upon the expiration of an
unexercised Securities Warrant equal to the holder's tax basis in the
Securities Warrant on the expiration date.
State and Local Tax Considerations
State and local tax laws may not correspond to the federal income tax
principles discussed in this section. Accordingly, prospective investors
should consult their tax advisers concerning the state and local tax
consequences of an investment in Resource REIT.
LEGAL OPINIONS
The validity of the Shares will be passed upon for the Company by
Venable, Baetjer and Howard (a partnership which includes professional
corporations), Baltimore, Maryland.
EXPERTS
The consolidated financial statements and schedules of the Company
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1992, amended as reflected in the Form 10-K/A for the year
ended December 31, 1992, which is incorporated in this Prospectus and
Registration Statement by reference, have been audited by KPMG Peat
Marwick, independent certified public accountants. Such financial
<PAGE>statements and schedules have been incorporated by reference
herein in reliance upon the reports of that firm and upon the authority
of that firm as experts in auditing and accounting.
<PAGE> Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses, other than underwriting discounts and
commissions, in connection with the offerings of Securities are:
Registration Fee $ 62,500
Legal Fees and Expenses *
Accounting Fees and Expenses *
Blue Sky Qualification and Expenses including Counsel Fees *
New York Stock Exchange Listing Fee *
Printing and Engraving Expenses *
Transfer Agent and Registrar Fees *
Miscellaneous *
------
TOTAL $ *
======
- -----------------
* To be supplied by amendment or incorporated by reference to periodic
reports filed by the Company pursuant to Section 13 of the Securities
Exchange Act of 1934.
Item 15. Indemnification of Directors and Officers
The Virginia Stock Corporation Act and the Company's Articles of
Incorporation provide for indemnification of the Company's directors and
officers in a variety of circumstances, which may include liabilities
under the Securities Act of 1933. The Company's Articles of
Incorporation require indemnification of directors and officers with
respect to certain liabilities, expenses, and other amounts imposed on
them by reason of having been a director or officer, except in the case
of willful misconduct or a knowing violation of criminal law. The
Company also carries insurance on behalf of directors, officers,
employees or agents which may cover liabilities under the Securities Act
of 1933. In addition, the Virginia Stock Corporation Act and the
Company's Articles of Incorporation eliminate the liability of a
director or officer of the Company in a shareholder or derivative
proceeding except in the event of willful misconduct or a knowing
violation of the criminal law or of federal or state securities laws.
Item 16. Exhibits
*1.1 - Form of Underwriting Agreement
4.1 - Form of Common Stock Certificate (incorporated herein by
reference to Amendment No. 3 of the Company's Registration
Statement on Form S-11 (No. 33-19261) dated February 10, 1988
4.2 - Articles of Incorporation (incorporated herein by reference
to the Company's Registration Statement on Form S-3 (No. 33-
53494), dated October 20, 1992)
*4.3 - Specimen of Articles Supplementary relating to Preferred
Stock
4.4 - Form of Senior Indenture
4.5 - Form of Subordinated Indenture
*4.6 - Form of Common Stock Warrant Agreement
*4.7 - Form of Preferred Stock Warrant Agreement
<PAGE> *4.8 - Form of Debt Warrant Agreement
5.1 - Opinion of Venable, Baetjer and Howard
*8.1 - Tax Opinion of Venable, Baetjer and Howard
**12.1 - Ratio of Available Earnings to Fixed Charges
23.1 - Consent of KPMG Peat Marwick
23.2 - Consent of Venable, Baetjer and Howard (contained in Exhibits
5.1 and 8.1)
24.1 - Power of Attorney relating to amendments (previously filed)
*25.1 - Statement of Eligibility of Trustee on Form T-1 (to be filed
under separate cover)
* To be filed by amendment or incorporated by reference to periodic
reports filed by the Company pursuant to Section 13 of the Securities
Exchange Act of 1934.
** Exhibit not provided because information is readily available from
basic financial statements.
<PAGE>Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
(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 the registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include
any financial statements required by Rule 3-19 of Regulation S-X
at the start of any delayed offering or throughout a continuous
offering.
(b) 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) of 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.
(c) 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 response to
Item 15, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefor, 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.
(d) The undersigned registrant hereby undertakes that:
(1) For the 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
<PAGE>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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has caused this
Amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Columbia, and
the State of Maryland, on January 28, 1994.
RESOURCE MORTGAGE CAPITAL, INC.
Thomas H.Potts
--------------------------------
Thomas H. Potts, President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed by the following
persons in the capacities indicated on January 28, 1994.
Signature Capacity
--------- ---------
Thomas H. Potts President and Director
- ----------------------
Thomas H. Potts (Principal Executive Officer)
Lynn K. Geurin Executive Vice President,
- ----------------------
Lynn K. Geurin (Principal Financial and
Accounting Officer)
* Director
- ----------------------
J. Sidney Davenport, IV
* Director
- ----------------------
Richard C. Leone
* Director
- ----------------------
Paul S. Reid
* Director
- ----------------------
Donald B. Vaden
* By Thomas H. Potts
---------------
Attorney-in-fact
<PAGE> EXHIBIT INDEX
Exhibit Sequentially
- ------
Numbered Page
-------------
4.4 Form of Senior Indenture
4.5 Form of Subordinated Indenture
5.1 Opinion of Venable, Baetjer and Howard
23.1 Consent of KPMG Peat Marwick
<PAGE>
Exhibit 4.4
RESOURCE MORTGAGE CAPITAL, INC.
AND
Trustee
Indenture
Dated as of , 199
Senior Debt Securities
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . 3
Common Shares . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . 4
European Monetary System . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . 5
GAAP . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . 6
i
<PAGE>
<PAGE>
Officers' Certificate . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . 8
Preferred Shares . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . 9
Repayment Date . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . 9
Security . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . 10
Significant Subsidiary . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . 11
United States person . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions. 11
SECTION 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . 12
SECTION 104. Acts of Holders . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company 15
SECTION 106. Notice to Holders; Waiver . . . . . . 15
SECTION 107. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . 17
SECTION 108. Successors and Assigns. . . . . . . . 17
SECTION 109. Separability Clause . . . . . . . . . 17
SECTION 110. Benefits of Indenture . . . . . . . . 17
SECTION 111. Governing Law . . . . . . . . . . . . 17
SECTION 112. Legal Holidays. . . . . . . . . . . . 17
SECTION 113. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. . . 18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . 19
SECTION 203. Securities Issuable in Global Form. . 19
ii<PAGE>
<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. 20
SECTION 302. Denominations . . . . . . . . . . . . 25
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . 25
SECTION 304. Temporary Securities . . . . . . . . 28
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . . . . 31
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . 35
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . 37
SECTION 308. Persons Deemed Owners . . . . . . . . 39
SECTION 309. Cancellation . . . . . . . . . . . . 40
SECTION 310. Computation of Interest . . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . 41
SECTION 402. Application of Trust Funds . . . . . 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . 43
SECTION 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . 45
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee . . 46
SECTION 504. Trustee May File Proofs of Claim . . 47
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . 48
SECTION 506. Application of Money Collected . . . 48
SECTION 507. Limitation on Suits . . . . . . . . . 49
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium, if any,
Interest and Additional Amounts . . . 50
SECTION 509. Restoration of Rights and Remedies . 50
SECTION 510. Rights and Remedies Cumulative . . . 50
SECTION 511. Delay or Omission Not Waiver . . . . 50
SECTION 512. Control by Holders of Securities . . 51
SECTION 513. Waiver of Past Defaults . . . . . . . 51
SECTION 514. Waiver of Usury, Stay or Extension
Laws . . . . . . . . . . . . . . . . 51
SECTION 515. Undertaking for Costs . . . . . . . . 52
iii<PAGE>
<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . 52
SECTION 602. Certain Rights of Trustee . . . . . . 53
SECTION 603. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . 54
SECTION 604. May Hold Securities . . . . . . . . . 55
SECTION 605. Money Held in Trust . . . . . . . . . 55
SECTION 606. Compensation and Reimbursement . . . 55
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests . 56
SECTION 608. Resignation and Removal;
Appointment of Successor. . . . . . . 56
SECTION 609. Acceptance of Appointment by Successor 58
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . 59
SECTION 611. Appointment of Authenticating Agent. . 60
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses
of Holders . . . . . . . . . . . . . 62
SECTION 702. Reports by Trustee . . . . . . . . . 62
SECTION 703. Reports by Company . . . . . . . . . 62
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . 63
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 63
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . 64
SECTION 803. Officers' Certificate and Opinion of
Counsel . . . . . . . . . . . . . . . 65
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without
Consent of Holders . . . . . . . . . 65
iv<PAGE>
<PAGE>
SECTION 902. Supplemental Indentures with Consent
of Holders. . . . . . . . . . . . . . 67
SECTION 903. Execution of Supplemental Indentures 68
SECTION 904. Effect of Supplemental Indentures . . 68
SECTION 905. Conformity with Trust Indenture Act . 68
SECTION 906. Reference in Securities to
Supplemental Indentures . . . . . . . 69
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if
any, Interest and Additional Amounts 69
SECTION 1002. Maintenance of Office or Agency . . 69
SECTION 1003. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . 71
SECTION 1004. Existence . . . . . . . . . . . . . 73
SECTION 1005. Maintenance of Properties . . . . . 73
SECTION 1006. Payment of Taxes and Other
Claims . . . . . . . . . . . . . . . 74
SECTION 1007. Statement as to Compliance . . . . . 74
SECTION 1008. Additional Amounts . . . . . . . . . 74
SECTION 1009. Waiver of Certain Covenants . . . . 76
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . 76
SECTION 1102. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . 76
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . 76
SECTION 1104. Notice of Redemption . . . . . . . . 77
SECTION 1105. Deposit of Redemption Price . . . . 79
SECTION 1106. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 79
SECTION 1107. Securities Redeemed in Part . . . . 80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . 80
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities . . . . . . 81
SECTION 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . 81
v<PAGE>
<PAGE>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . 82
SECTION 1302. Repayment of Securities . . . . . . 82
SECTION 1303. Exercise of Option . . . . . . . . . 83
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable . . 83
SECTION 1305. Securities Repaid in Part . . . . . 85
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . 85
SECTION 1402. Defeasance and Discharge . . . . . . 85
SECTION 1403. Covenant Defeasance . . . . . . . . 86
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . 87
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . 89
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vi<PAGE>
<PAGE>
RESOURCE MORTGAGE CAPITAL, INC.
Reconciliation and tie between Trust Indenture Act of 1939 (the
"1939 Act") and Indenture, dated as of , 1994
Trust Indenture Act Section Indenture Section
310(a)(1) .............................. 607
(a)(2) .............................. 607
(b) .................................. 607, 608
312(a) .................................. 704
312(c) .................................. 701
313(a) .................................. 702
(c) .................................. 702
314(a) .................................. 703
(a)(4) .............................. 1009
(c)(1) .............................. 102
(c)(2) .............................. 102
(e) .................................. 102
315(b) .................................. 601
316(a) (last sentence) ................. 101 ("Outstanding")
(a)(1)(A) ........................... 512
(a)(1)(B) ........................... 513
(b) ................................. 508
317(a)(1) .............................. 503
(a)(2) .............................. 504
318 (a) ................................. 111
(c) ................................. 111
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of
the 1939 Act, which provides that the provisions of Sections 310
to and including 317 of the 1939 Act are a part of and govern
every qualified indenture, whether or not physically contained
therein.
vii<PAGE>
<PAGE>
INDENTURE, dated as of , between
RESOURCE MORTGAGE CAPITAL, INC., a corporation organized under
the laws of Virginia (hereinafter called the "Company"), having
its principal office at 10500 Little Patuxent Parkway, Columbia,
Maryland 21044 , a corporation
organized under the laws 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 rates or formulas, 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 ("TIA"), 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 ("Holders"),
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;
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<PAGE>
(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
GAAP; and
(4) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, 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.
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<PAGE>
"Bankruptcy Law" has the meaning specified in Section
501.
"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 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 Shares" means, with respect to any Person,
capital stock issued by such Person other than Preferred 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 one trustee and one executive officer of the
Company, and delivered to the Trustee.
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<PAGE>
"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,
partnerships, companies and business trusts.
"coupon" means any interest coupon appertaining to a
Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in
Section 307.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at
the time shall be legal tender for 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.
"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.
<PAGE>
<PAGE>
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU
issued by the government of one or more countries other than the
United States of America or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles,
as in effect from time to time, as used in the United States
applied on a consistent basis.
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America
or such government which issued the foreign currency in which
the Securities of such series are payable, the payment of which
is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other
government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced
by such depository receipt.
"Holder" means, in the case of a Registered Security,
the Person in whose name a Security is registered in the
Security Register and, in the case of a Bearer Security, the
bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established
as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or
more series of Securities for which such Person is<PAGE>
<PAGE>
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
particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however,
of any provisions or terms which relate solely to other series
of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of
any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such
Person had become such Trustee but to which such Person, as such
Trustee, was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, shall mean interest payable after Maturity, and, when
used with respect to a Security which provides for the payment
of Additional Amounts pursuant to Section 1008, 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.
"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.
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<PAGE>
"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 Shares or
Preferred Shares pursuant to or in accordance with this
Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting
of Holders for quorum purposes, and for the purpose of making
the calculations required by 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<PAGE>
<PAGE>
such determination, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal
amount of any Security denominated in a Foreign Currency that
may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as
of the date such Security is originally issued by the Company,
of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such
determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such 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;<PAGE>
<PAGE>
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 Shares" means, with respect to any Person,
capital shares issued by such Person that are entitled to a
preference or priority over any other capital shares issued by
such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"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.
"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, any corporate 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<PAGE>
<PAGE>
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.
"Significant Subsidiary" means any Subsidiary which is
a "significant subsidiary" (as defined in Article I, Rule 1-02
of Regulation S-X, promulgated under the Securities Act of 1933)
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.
"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.
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<PAGE>
"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.
"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
(including certificates delivered pursuant to Section 1008)
shall include:
<PAGE>
<PAGE>
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or
more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, or a certificate or representations by
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion
of Counsel or certificate or representations may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters
is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations as to such
matters are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
<PAGE>
<PAGE>
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. The record of
any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a certificate<PAGE>
<PAGE>
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 exhibit, 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.
In the absence of any such record date fixed by the
Company, regardless as to whether a solicitation of the Holders
is occurring on behalf of the Company or any Holder, the Trustee
may, at its option, fix in advance a record date for<PAGE>
<PAGE>
the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Trustee shall have no obligation to do so.
Any such record date shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection
therewith no later than the date of such solicitation.
(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
,
(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,<PAGE>
<PAGE>
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
New York City 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.
<PAGE>
<PAGE>
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of
notice by Holders 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 New York. 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,<PAGE>
<PAGE>
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.
SECTION 113. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for
the payment of the principal of or premium, if any, or interest,
if any, on any Security, or for any claim based thereon, or
otherwise in respect of any Security, or based on or in respect
of this Indenture or any indenture supplemental hereto, against
any incorporator, or against any past, present or future
stockholder, director of officers, as such, of the Company or of
any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issue
of Securities.
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.
<PAGE>
<PAGE>
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication. Subject to Section 611, the Trustee's
certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
as Trustee
By
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any
such Security shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide
that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the
Person or Persons specified<PAGE>
<PAGE>
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.
Nothwithstanding the provisions of Section 308 and
except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat
as the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the
case of a permanent global Security in bearer form, Euroclear or
CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
There shall be established in 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<PAGE>
<PAGE>
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, 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 the Borough of Manhattan, New York City, 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, exchange or conversion 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;
<PAGE>
<PAGE>
(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 or, if
applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance
with the provisions of this Indenture, or the method by
which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and
premium, 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;
(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<PAGE>
<PAGE>
currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or
stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies
in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to
the Holders of Securities of 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 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<PAGE>
<PAGE>
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 Section 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 1010
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 obligation, if any, of the Company to permit
the conversion of the Securities of such series into the
Company's Common Shares or Preferred Shares, as the case may
be, and the terms and conditions upon which such conversion
shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for
purposes of conversion; 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<PAGE>
<PAGE>
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 a trustee and an
executive officer of the Company and attested by its Secretary
or one of its Assistant Secretaries. The signature of any of
these individuals on the Securities and coupons may be manual or
facsimile signatures of the present or any future such
authorized officer and trustee 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<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
(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
generally and to general equitable principles; 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, 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 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<PAGE>
<PAGE>
in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) stating that such
Security has never been issued 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 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<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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 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 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.
<PAGE>
<PAGE>
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 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<PAGE>
<PAGE>
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 permanent global Security is otherwise entitled to exchange
such interest for Securities of such series and of<PAGE>
<PAGE>
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 before 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<PAGE>
<PAGE>
Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any
Security if such Security may be among those selected for
redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day
of the mailing of the relevant notice of redemption and (B) if
such Securities are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or,
if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice
of redemption, or (ii) to register the transfer of or exchange
any Registered Security so selected for redemption in whole or
in part, except, in the case of any Registered Security to be
redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided that
such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, 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,<PAGE>
<PAGE>
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 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.
<PAGE>
<PAGE>
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved. Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of
Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered
Security may at the Company's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located
inside the United States.
Unless otherwise provided as contemplated by Section
301 with respect to the Securities of any series, payment of
interest may be made, in the case of a Bearer Security, by
transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section
301, every permanent global Security will provide that interest,
if any, payable on any Interest Payment Date will be paid to
DTC, Euroclear and/or CEDEL, as the case may be, with respect to
that portion of such permanent global Security held for its
account by Cede & Co. or the Common 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.
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.
<PAGE>
<PAGE>
Except as otherwise specified with respect to a series
of Securities in accordance with the provisions of Section 301,
any interest on any Registered Security of any series that is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee) and at the same time
the Company shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his
address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least
once in an Authorized Newspaper in each place of payment,
but such publications shall not be a condition precedent to
the<PAGE>
<PAGE>
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the
close of business at such office or agency on any Special
Record Date and before the opening of business at such
office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed
date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due
presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and
premium, 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.
<PAGE>
<PAGE>
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 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of
the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and
any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall
be promptly cancelled by it; provided, however, where the Place
of Payment is located outside of the United States, the Paying
Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the
Securities to the Trustee. 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<PAGE>
<PAGE>
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 310. Computation of Interest. Except as
otherwise specified as contemplated by Section 301 with respect
to Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in
such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive
Additional Amounts, 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
<PAGE>
<PAGE>
(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 (A) 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, (B) Government Obligations that
through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will
provide, not later than on day before the due date of
any payment, money in an amount, or (C) a combination
thereof, 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<PAGE>
<PAGE>
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
amounts 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 amounts have been deposited with
or received by the Trustee, but such amounts 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<PAGE>
<PAGE>
whose breach is elsewhere in this Section specifically dealt
with) and continuance of such default or breach for a period
of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all
of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for
90 days; or
<PAGE>
<PAGE>
(7) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
title 11, U.S. Code or any similar Federal or State law for the
relief of debtors and the term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under
any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal (or, if any Securities
are Original Issue Discount Securities or Indexed Securities,
such portion of the principal as may be specified in the terms
thereof) of 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 or 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):
(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,
<PAGE>
<PAGE>
(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 Amounts, 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,<PAGE>
<PAGE>
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of
such series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities of such
series, wherever situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In
case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, 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
<PAGE>
<PAGE>
(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:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;
<PAGE>
<PAGE>
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
indemnity reasonably satisfactory to the Trustee 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.
<PAGE>
<PAGE>
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal
of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such
Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If
the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject
to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay
or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by
the Holders of Securities or coupons, as the case may be.
<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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).
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 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<PAGE>
<PAGE>
Securities and coupons of such series, no such notice to Holders
shall be given until at least 90 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;
(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 security or indemnity reasonably satisfactory to
the Trustee 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<PAGE>
<PAGE>
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 make
reasonable examination of the books, records and premises of
the Company, personally or by agent or attorney following
reasonable notice to the Company;
(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
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
Except during the continuance of an Event of Default,
the Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee.
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.
<PAGE>
<PAGE>
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 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(6)
or Section 501(7), 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.
<PAGE>
<PAGE>
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. 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. If the Trustee has or
shall acquire a conflicting interest within the meaning of the
TIA, the Trustee shall either eliminate such interest or resign
to the extent and in the manner provided by and subject to the
provisions of the TIA and this Indenture.
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:
<PAGE>
<PAGE>
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security who has been a bona
fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office
of Trustee for any cause with respect to the Securities of one
or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a<PAGE>
<PAGE>
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.
(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<PAGE>
<PAGE>
for or facilitate the administration 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<PAGE>
<PAGE>
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
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
$50,000,000 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<PAGE>
<PAGE>
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
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
<PAGE>
<PAGE>
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 as
provided in TIA Section 313(c) a brief report dated as of such
May 15 if required by TIA Section 313(a). A copy of each such
report shall at the time of such transmission to Holders be
filed by the Trustee with each stock exchange upon which any
Securities are listed with the Commission and the Company. The
Company will notify the Trustee when any securities are listed
on any stock exchange.
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, 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;
<PAGE>
<PAGE>
(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<PAGE>
<PAGE>
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 this Indenture
on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Company
by supplemental indenture, complying with Article Nine hereof,
satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation and (2) immediately after giving
effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a
result thereof as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor
Corporation. In case of any such consolidation, merger, sale,
lease or conveyance and upon any such assumption by the
successor 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.
<PAGE>
<PAGE>
SECTION 803. Officers' Certificate and Opinion of
Counsel. Any consolidation, merger, sale, lease or conveyance
permitted under Section 801 is also subject to the condition
that the Trustee receive an Officers' Certificate and an Opinion
of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor
corporation, complies with the provisions of this Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent
of Holders. Without the consent of any Holders of Securities or
coupons, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events
of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect
of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such
default; or
<PAGE>
<PAGE>
(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, including the provisions and procedures
relating to Securities convertible into Common Shares or
Preferred Shares, as the case may be; 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;<PAGE>
<PAGE>
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 1008 (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<PAGE>
<PAGE>
and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included 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.
<PAGE>
<PAGE>
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,
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 1008 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. 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 Securities of a series are issuable as Bearer
Securities, the Company will maintain: (A) in the<PAGE>
<PAGE>
Borough of Manhattan, The City of New York, an office or agency
where any Registered Securities of that series may be presented
or surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for 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 or
conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or
agency where Securities of that series and related coupons may
be presented and surrendered for payment (including payment of
any Additional Amounts payable on Securities of that series
pursuant to Section 1008) or conversion; 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 demand 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 1008) or conversion at the offices specified
in the Security, in London, England, and the Company hereby
appoints the same as its agent to receive such 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,<PAGE>
<PAGE>
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 1008) shall be
made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium, interest
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 the Borough of Manhattan, The City
of New York, 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, notice 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<PAGE>
<PAGE>
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) 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, 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
or Additional Amounts in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any such payment of principal (and premium, if
any) or interest or Additional Amounts; and
(3) at any time during the continuance of any Event of
Default upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
<PAGE>
<PAGE>
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), 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 to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight,
the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company.
SECTION 1005. Maintenance of Properties. The Company
will cause all of it properties used or useful in the conduct of
its business or the business of any Subsidiary to be<PAGE>
<PAGE>
maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times.
SECTION 1006. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it
or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Statement as to Compliance. The Company
will deliver to the Trustee, within 120 days after the end of
each fiscal year, a 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
1004, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 1008. 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<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
SECTION 1009. Waiver of Certain Covenants. The
Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1006,
inclusive, if before or after the time for such compliance the
Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of
any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, at least 45
days prior to the giving of the notice of redemption in Section
1104 (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued
on the same day with the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate<PAGE>
<PAGE>
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,
<PAGE>
<PAGE>
(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
(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.
<PAGE>
<PAGE>
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. At least
one Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) sufficient to pay on the Redemption Date the Redemption
Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office
or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities
convertible into Common Stock or Preferred Stock, installments
of interest on Registered Securities whose Stated Maturity is on
or prior to the<PAGE>
<PAGE>
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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The
provisions of this Article shall be applicable to any sinking<PAGE>
<PAGE>
fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of such
Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. The Company may, in satisfaction of all or any
part of any mandatory sinking fund payment with respect to the
Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as
a credit Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
as provided for by the terms of such Securities, or which have
otherwise been acquired by the Company; provided that such
Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking
Fund. Not less than 60 days prior to each sinking 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 the portion thereof, if any,
which is to be satisfied by delivering and crediting<PAGE>
<PAGE>
Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be
added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the
terms of such Securities, if any, and (except as otherwise
specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of
any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the
principal amount 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 at
least one Business Day prior to the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay the
principal (or, if so provided by the terms of the Securities of
any series, a percentage of the principal) of, and (except if
the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
<PAGE>
<PAGE>
SECTION 1303. Exercise of Option. Securities of any
series subject to repayment at the option of the Holders thereof
will contain an "Option to Elect Repayment" form on the reverse
of such Securities. In order for any Security to be repaid at
the option of the Holder, the Trustee must receive at the Place
of Payment therefor specified in the terms of such Security (or
at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier
than 60 days nor later than 30 days prior to the Repayment Date
(1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the
United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any,
or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date
of such telegram, telex, facsimile transmission or letter;
provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security
and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of
such Security, the principal amount of such Security to be
repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered
that is not to be repaid, must be specified. The principal
amount of any Security providing for repayment at the option of
the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of
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<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
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.
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,<PAGE>
<PAGE>
"defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 1405 and
the other Sections of this Indenture referred to in clauses (A)
and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and
premium, 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 1008, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section
1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 1004 to
1006, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such
Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter
be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections
1004 to 1006, inclusive, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect<PAGE>
<PAGE>
of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such Section
or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or
in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4)
or 501(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 any case, in
an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion
of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the
Stated Maturity of such<PAGE>
<PAGE>
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 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.
<PAGE>
<PAGE>
(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 301 or the terms of such Security to
receive payment in a currency or currency unit<PAGE>
<PAGE>
other than that in which the deposit pursuant to Section 1404(a)
has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the currency or currency unit in
which the deposit pursuant to Section 1404(a) has been made, the
indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the
principal of (and premium, 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, subject to Section 606, 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.
* * * * *
<PAGE>
<PAGE>
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 all as of the day and year first
above written.
RESOURCE MORTGAGE CAPITAL, INC.
By:
Title:
Attest:
Title:
as Trustee
By:
Title:
Attest:
Title:
<PAGE>
<PAGE>
STATE OF MARYLAND )
) ss:
COUNTY OF MONTGOMERY)
On the day of , before me personally
came , to me known, who, being by me duly
sworn, did depose and say that he/she resides at
, , that he/she is of
RESOURCE MORTGAGE CAPITAL, INC., one of the parties described in
and which executed the foregoing instrument, and that he/she
signed his/her name thereto by authority of the board of
trustees.
[Notarial Seal]
Notary Public
COMMISSION EXPIRES
STATE OF ________ )
) ss:
COUNTY OF ________ )
On the day of , before me personally
came , to me known, who, being by me duly
sworn, did depose and say that he/she resides at
, that he/she is of ,
one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by
authority of the Board of Trustees.
[Notarial Seal]
Notary Public
COMMISSION EXPIRES
<PAGE>
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and
except as set forth below, the above-captioned Securities held
by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"),
(ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations
Section 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
Resource Mortgage Capital, 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.
<PAGE>
<PAGE>
As used herein, "United States" means the United States
of America (including the States and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We undertake to advise you promptly by tested telex on
or prior to the date on which you intend to submit your
certification relating to the above-captioned Securities held by
you for our account in accordance with your Operating Procedures
if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not 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.
Dated: , 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:
<PAGE>
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date
hereof, [U.S.$] _____________ principal amount of the
above-captioned Securities (i) is owned by person(s) that are
not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"),
(ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial
institutions, as defined in 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 Resource Mortgage Capital,
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.
<PAGE>
<PAGE>
As used herein, "United States" means the United States
of America (including the States and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary global Security
representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification
from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States.
If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By:
<PAGE>
Exhibit 4.5
RESOURCE MORTGAGE CAPITAL, INC.
AND
Trustee
Indenture
Dated as of , 199
Subordinated Debt Securities
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . 3
Bearer Security. . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . 3
CEDEL. . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . 3
Common Shares. . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order. . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . 4
corporation. . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . 4
Custodian. . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . 4
Dollar or $. . . . . . . . . . . . . . . . . . 4
ECU. . . . . . . . . . . . . . . . . . . . . . 4
Euroclear. . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . 4
European Monetary System . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . 5
GAAP . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . 5
Indenture. . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date. . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . 6
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<PAGE>
Officers' Certificate. . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . 6
Outstanding. . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . 8
Preferred Shares . . . . . . . . . . . . . . . 9
Redemption Date. . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . 9
Registered Security. . . . . . . . . . . . . . 9
Regular Record Date. . . . . . . . . . . . . . 9
Repayment Date . . . . . . . . . . . . . . . . 9
Representative . . . . . . . . . . . . . . . . 9
Repayment Price. . . . . . . . . . . . . . . . 9
Responsible Officer. . . . . . . . . . . . . . 9
Security . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . 10
Senior Debt . . . . . . . . . . . . . . . . . 10
Significant Subsidiary . . . . . . . . . . . . 10
Special Record Date. . . . . . . . . . . . . . 10
Stated Maturity. . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . . . . 11
Trustee. . . . . . . . . . . . . . . . . . . . 11
United States. . . . . . . . . . . . . . . . . 11
United States person . . . . . . . . . . . . . 11
Yield to Maturity. . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . 11
SECTION 103. Form of Documents Delivered to
Trustee. . . . . . . . . . . . . . . 12
SECTION 104. Acts of Holders. . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and
Company. . . . . . . . . . . . . . . 15
SECTION 106. Notice to Holders; Waiver. . . . . . 15
SECTION 107. Effect of Headings and Table
of Contents. . . . . . . . . . . . . 17
SECTION 108. Successors and Assigns . . . . . . . 17
SECTION 109. Separability Clause. . . . . . . . . 17
SECTION 110. Benefits of Indenture. . . . . . . . 17
SECTION 111. Governing Law. . . . . . . . . . . . 17
SECTION 112. Legal Holidays . . . . . . . . . . . 17
SECTION 113. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. . 18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate
of Authentication. . . . . . . . . . 19
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SECTION 203. Securities Issuable in Global
Form . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . . . 20
SECTION 302. Denominations. . . . . . . . . . . . 25
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . 25
SECTION 304. Temporary Securities . . . . . . . . 28
SECTION 305. Registration, Registration of
Transfer and Exchange. . . . . . . . 31
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . . . 35
SECTION 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . 36
SECTION 308. Persons Deemed Owners. . . . . . . . 39
SECTION 309. Cancellation . . . . . . . . . . . . 40
SECTION 310. Computation of Interest. . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge
of Indenture . . . . . . . . . . . . 41
SECTION 402. Application of Trust Funds. . . . . . 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . 43
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . 44
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee . . 46
SECTION 504. Trustee May File Proofs of Claim . . 47
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. 48
SECTION 506. Application of Money Collected . . . 48
SECTION 507. Limitation on Suits. . . . . . . . . 48
SECTION 508. Unconditional Right of Holders
to Receive Principal, Premium,
if any, Interest and Additional
Amounts. . . . . . . . . . . . . . . 49
SECTION 509. Restoration of Rights and Remedies . 49
SECTION 510. Rights and Remedies Cumulative . . . 50
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<PAGE>
SECTION 511. Delay or Omission Not Waiver . . . . 50
SECTION 512. Control By Holders of Securities . . 50
SECTION 513. Waiver of Past Defaults. . . . . . . 51
SECTION 514. Waiver of Usury, Stay or
Extension Laws . . . . . . . . . . . 51
SECTION 515. Undertaking for Costs. . . . . . . . 51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . 52
SECTION 602. Certain Rights of Trustee. . . . . . 52
SECTION 603. Not Responsible for Recitals
or Issuance of Securities. . . . . . 54
SECTION 604. May Hold Securities. . . . . . . . . 54
SECTION 605. Money Held in Trust. . . . . . . . . 54
SECTION 606. Compensation and Reimbursement . . . 55
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests . 55
SECTION 608. Resignation and Removal;
Appointment of Successor . . . . . . 56
SECTION 609. Acceptance of Appointment by
Successor. . . . . . . . . . . . . . 58
SECTION 610. Merger, Conversion, Consolidation
or Succession to Business. . . . . . 59
SECTION 611. Appointment of Authenticating
Agent. . . . . . . . . . . . . . . . 59
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and
Addresses of Holders . . . . . . . . 61
SECTION 702. Reports by Trustee . . . . . . . . . 62
SECTION 703. Reports by Company . . . . . . . . . 62
SECTION 704. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . 63
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 . . . . . . . . . 63
SECTION 802. Rights and Duties of Successor
Corporation. . . . . . . . . . . . . 64
SECTION 803. Officers' Certificate and Opinion
of Counsel . . . . . . . . . . . . . 64
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<PAGE>
<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . 65
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . 66
SECTION 903. Execution of Supplemental
Indentures . . . . . . . . . . . . . 68
SECTION 904. Effect of Supplemental
Indentures . . . . . . . . . . . . . 68
SECTION 905. Conformity with Trust Indenture
Act. . . . . . . . . . . . . . . . . 68
SECTION 906. Reference in Securities to
Supplemental Indentures. . . . . . . 68
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium,
if any, Interest and Additional
Amounts. . . . . . . . . . . . . . . 69
SECTION 1002. Maintenance of Office or Agency. . . 69
SECTION 1003. Money for Securities Payments to
Be Held in Trust . . . . . . . . . . 71
SECTION 1004. Existence. . . . . . . . . . . . . . 73
SECTION 1005. Maintenance of Properties. . . . . . 73
SECTION 1006. Payment of Taxes and Other Claims. . 73
SECTION 1007. Statement as to Compliance . . . . . 74
SECTION 1008. Additional Amounts . . . . . . . . . 74
SECTION 1009. Waiver of Certain Covenants. . . . . 75
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . 75
SECTION 1102. Election to Redeem; Notice
to Trustee . . . . . . . . . . . . . 76
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . 76
SECTION 1104. Notice of Redemption . . . . . . . . 76
SECTION 1105. Deposit of Redemption Price. . . . . 78
SECTION 1106. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 78
SECTION 1107. Securities Redeemed in Part. . . . . 80
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<PAGE>
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . 80
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities . . . . . . 80
SECTION 1203. Redemption of Securities for
Sinking Fund . . . . . . . . . . . . 81
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . 81
SECTION 1302. Repayment of Securities. . . . . . . 81
SECTION 1303. Exercise of Option . . . . . . . . . 82
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable . . 83
SECTION 1305. Securities Repaid in Part. . . . . . 84
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article;
Company's Option to Effect
Defeasance or Covenant Defeasance. . 84
SECTION 1402. Defeasance and Discharge . . . . . . 85
SECTION 1403. Covenant Defeasance. . . . . . . . . 85
SECTION 1404. Conditions to Defeasance or
Covenant Defeasance. . . . . . . . . 86
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . 88
ARTICLE FIFTEEN
SUBORDINATION
SECTION 1501. Agreement to Subordinate . . . . . . 90
SECTION 1502. Liquidation; Dissolution;
Bankruptcy . . . . . . . . . . . . . 90
SECTION 1503. Default on Senior Debt . . . . . . . 90
SECTION 1504. Acceleration of Securities . . . . . 91
SECTION 1505. When Distribution Must be Paid
Over . . . . . . . . . . . . . . . . 91
SECTION 1506. Notice by Company. . . . . . . . . . 91
SECTION 1507. Subrogation . . . . . . . . . . . . 91
SECTION 1508. Relative Rights . . . . . . . . . . 91
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<PAGE>
SECTION 1509. Subordination May Not Be Impaired
by Trust . . . . . . . . . . . . . . 92
SECTION 1510. Distribution or Notice to
Representative . . . . . . . . . . . 92
SECTION 1511. Rights of Trustee and Paying Agent . 92
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
-vii-
<PAGE>
<PAGE>
RESOURCE MORTGAGE CAPITAL, INC.
Reconciliation and tie between Trust Indenture Act of 1939
(the "1939 Act") and Indenture, dated as of , 199
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1).................................. 607
(a)(2).................................. 607
(b)..................................... 607, 608
Sec. 312(c)..................................... 701
Sec. 313(a)..................................... 702
(c)..................................... 702
Sec. 314(a)..................................... 703
(a)(4).................................. 1011
(c)(1).................................. 102
(c)(2).................................. 102
(e)..................................... 102
Sec. 315(b)..................................... 601
Sec. 316(a) (last sentence)..................... 101 ("Outstanding")
(a)(1)(A)............................... 502, 512
(a)(1)(B)............................... 513
(b)..................................... 508
Sec. 317(a)(1).................................. 503
(a)(2).................................. 504
Sec. 318(a)..................................... 111
(c)..................................... 111
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of
the 1939 Act, which provides that the provisions of Sections 310
to and including 317 of the 1939 Act are a part of and govern
every qualified indenture, whether or not physically contained
therein.
-viii-<PAGE>
<PAGE>
INDENTURE, dated as of , 199 between
RESOURCE MORTGAGE CAPITAL, INC., a corporation organized under
the laws of Virginia (hereinafter called the "Company"), having
its principal office at 10500 Little Patuxent Parkway, Columbia,
Maryland 21044 and , a corporation organized
under the laws 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 subordinated 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 rates or formulas, 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;
<PAGE>
<PAGE>
(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 GAAP;
and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, 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.
<PAGE>
<PAGE>
"Bankruptcy Law" has the meaning specified in Section
501.
"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 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 Shares" means, with respect to any Person,
capital stock issued by such Person other than Preferred 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.
<PAGE>
<PAGE>
"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.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in
Section 307.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at
the time shall be legal tender for 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.
"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.
<PAGE>
<PAGE>
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU
issued by the government of one or more countries other than the
United States of America or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles,
as in effect from time to time, as used in the United States
applied on a consistent basis.
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment
of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America
or such government which issued the foreign currency in which
the Securities of such series are payable, the payment of which
is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other
government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced
by such depository receipt.
"Holder" means, in the case of a Registered Security,
the Person in whose name a Security is registered in the
Security Register and in the case of a Bearer Security, the
bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established
as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or
more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may<PAGE>
<PAGE>
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
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 1008, 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.
"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.
<PAGE>
<PAGE>
"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 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 Shares or
Preferred Shares pursuant to or in accordance with this
Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting
of Holders for quorum purposes, and for the purpose of making
the calculations required by 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<PAGE>
<PAGE>
equal to the amount of principal thereof that would be (or shall
have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal
amount of any Security denominated in a Foreign Currency that
may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as
of the date such Security is originally issued by the Company,
of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such
determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such 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<PAGE>
<PAGE>
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 Shares" means, with respect to any Person,
capital shares issued by such Person that are entitled to a
preference or priority over any other capital shares issued by
such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"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.
"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.
"Representative" means the indenture trustee or other
trustee, agent or representative for an issue of Senior Debt.
"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<PAGE>
<PAGE>
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.
"Senior Debt" means any obligation of the Company to
its creditors whether now outstanding or subsequently incurred
other than (i) any obligation as to which, in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding, it is provied that such obligation is not Senior
Debt, and (ii) obligations evidenced by the Securities.
"Significant Subsidiary" means any Subsidiary which is
a "significant subsidiary" (as defined in Article I, Rule 1-02
of Regulation S-X, promulgated under the Securities Act of 1933)
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.
"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<PAGE>
<PAGE>
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.
"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<PAGE>
<PAGE>
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
(including certificates delivered pursuant to Section 1008)
shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or
more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, or a certificate or representations by
counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion
of Counsel or certificate or representations may be based,
insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters
is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations as to such
matters are erroneous.
<PAGE>
<PAGE>
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 the
supplemental indenture with respect to such series, 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.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient.
<PAGE>
<PAGE>
(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.
<PAGE>
<PAGE>
In the absence of any such record date fixed by
the Company, regardless as to whether a solicitation of the
Holders is occurring on behalf of the Company or any Holder, the
Trustee may, at its option, fix in advance a record date for the
determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other Act, but the Trustee shall have no obligation to do so.
Any such record date shall be a date not more than 30 days prior
to the first solicitation of Holders generally in connection
therewith no later than the date of such solicitation.
(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
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<PAGE>
<PAGE>
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 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.
<PAGE>
<PAGE>
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of
notice by Holders 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 wit the law of the State of New York. 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,<PAGE>
<PAGE>
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.
SECTION 113. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for
the payment of the principal of or premium, if any, or interest,
if any, on any Security, or for any claim based thereon, or
otherwise in respect of any Security, or based on or in respect
of this Indenture or any indenture supplemental hereto, against
any incorporator, or against any past, present or future
stockholder, director of officers, as such, of the Company or of
any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issue
of Securities.
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,<PAGE>
<PAGE>
all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or
coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication. Subject to Section 611, the Trustee's
certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
,
as Trustee
By: ,
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any
such Security shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide
that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of
a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303
shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee the Security in global<PAGE>
<PAGE>
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 308 and
except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat
as the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the
case of a permanent global Security in bearer form, Euroclear or
CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
There shall be established in 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<PAGE>
<PAGE>
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, 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 the Borough of Manhattan, The City of New York,
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, exchange or conversion 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,<PAGE>
<PAGE>
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 or, if
applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance
with the provisions of this Indenture, or the method by
which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and
premium, 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;
(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, and the
terms and conditions upon which, such election may be made,
and the time and manner of, and identity of the exchange
rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such
Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so
payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
<PAGE>
<PAGE>
(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 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;
<PAGE>
<PAGE>
(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 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 obligation, if any, of the Company to permit
the conversion of the Securities of such series into the
Company's Common Shares or Preferred Shares, as the case may
be, and the terms and conditions upon which such conversion
shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for
purposes of conversion; 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 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<PAGE>
<PAGE>
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<PAGE>
<PAGE>
A-I 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 Company,
enforceable in accordance with their terms,<PAGE>
<PAGE>
subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general
applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable
principles; and
(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, 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 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 signatory, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written<PAGE>
<PAGE>
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 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<PAGE>
<PAGE>
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 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<PAGE>
<PAGE>
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-I 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<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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 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 then due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the<PAGE>
<PAGE>
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 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<PAGE>
<PAGE>
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 before 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.
<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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
and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301,
any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which
a destroyed, lost or stolen coupon appertains, shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved. Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of<PAGE>
<PAGE>
Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered
Security may at the Company's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located
inside the United States.
Unless otherwise provided as contemplated by Section
301 with respect to the Securities of any series, payment of
interest may be made, in the case of a Bearer Security, by
transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section
301, every permanent global Security will provide that interest,
if any, payable on any Interest Payment Date will be paid to
DTC, Euroclear and/or CEDEL, as the case may be, with respect to
that portion of such permanent global Security held for its
account by Cede & Co. or the Common 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.
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<PAGE>
<PAGE>
been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1)
or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same
time the Company shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more that 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his
address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least
once in an Authorized Newspaper in each place of payment,
but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no<PAGE>
<PAGE>
longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the
close of business at such office or agency on any Special
Record Date and before the opening of business at such
office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed
date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due
presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security
for the purpose of receiving payment or 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<PAGE>
<PAGE>
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 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of
the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and
any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall
be promptly 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.
<PAGE>
<PAGE>
SECTION 310. Computation of Interest. Except as
otherwise specified as contemplated by Section 301 with respect
to Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in
such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive
Additional Amounts, 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
<PAGE>
<PAGE>
(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 (A) 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, (B) Government Obligations that
through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will
provide, not later than on day before the due date of
any payment, money in an amount, or (C) a combination
thereof, 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.
<PAGE>
<PAGE>
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
(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 90 days after there has been given, by registered
or certified mail, to the Company by the trustee or to the
Company and the Trustee by the Holders of at<PAGE>
<PAGE>
least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all
of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for
90 days; or
(7) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
title 11, U.S. Code or any similar Federal or State law for the
relief of debtors and the term Custodian means any receiver,
trustee, assignee, liquidator or other similar official under
any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal (or, if any Securities<PAGE>
<PAGE>
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):
(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
as 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.
<PAGE>
<PAGE>
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 decreed to be
payable in the manner provided by law out of the property if 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.
<PAGE>
<PAGE>
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 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.
<PAGE>
<PAGE>
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;
<PAGE>
<PAGE>
(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
indemnity reasonably satisfactory to the Trustee 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, 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<PAGE>
<PAGE>
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay
or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by
the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The
Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining
therein.
<PAGE>
<PAGE>
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 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<PAGE>
<PAGE>
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 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 90 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,<PAGE>
<PAGE>
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 security or indemnity reasonably satisfactory to
the Trustee 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<PAGE>
<PAGE>
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it.
Except during the continuance of an Event of Default,
the Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee.
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
make 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 with the Company.
<PAGE>
<PAGE>
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. 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<PAGE>
<PAGE>
of at least $50,000,000. If such corporation publishes reports
of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article. If the Trustee has or
shall acquire a conflicting interest within the meaning of the
TIA, the Trustee shall either eliminate such interest or resign
to the extent and in the manner provided by and subject to the
provisions of the TIA and this Indenture.
SECTION 608. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice
thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of
a majority in principal amount of the Outstanding Securities of
such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months, or
<PAGE>
<PAGE>
(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<PAGE>
<PAGE>
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.
(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,<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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
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
$50,000,000 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. <PAGE>
<PAGE>
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
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<PAGE>
<PAGE>
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 as
provided in TIA Section 313(c) a brief report dated as of such
May 15 if required by TIA Section 3l3(a). A copy of each such
report shall at the time of such transmission to Holders be
filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and the Company. The
Company will notify the Trustee when any securities are listed
on any stock exchange.
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<PAGE>
<PAGE>
Section 3l3(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 all Additional Amounts, if any,
payable pursuant to this Indenture) on all of the Securities,
according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental
indenture, complying with Article Nine hereof, satisfactory to
the Trustee, executed and delivered to the Trustee by such
corporation and (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result thereof
as having been incurred by the Company or such<PAGE>
<PAGE>
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor
Corporation. In case of any such consolidation, merger, sale,
lease or conveyance and upon any such assumption by the
successor 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. Any consolidation, merger, sale, lease or conveyance
permitted under Section 801 is also subject to the condition
that the Trustee receive an Officers' Certificate and an Opinion
of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor
corporation, complies with the provisions of this Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with.
<PAGE>
<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent
of Holders. Without the consent of any Holders of Securities or
coupons, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of
less than all series of Securities stating that such Events
of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect
of any such additional Events of Default such supplemental
Indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to
which such additional Events of Default apply or 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 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<PAGE>
<PAGE>
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, including the provisions and
procedures relating to Securities convertible into Common
Stock or Preferred Stock, as the case may be; 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.
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<PAGE>
<PAGE>
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 1008 (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,
Section 513 or Section 1008, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
<PAGE>
<PAGE>
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 Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
<PAGE>
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts. The Company covenants and
agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of
(and premium, 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 1008 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 the Borough of Manhattan, The
City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for
payment or conversion, where any Registered Securities of that
series may be surrendered for 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 or conversion in the
circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities<PAGE>
<PAGE>
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 1008) or conversion; 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 demand 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 1008) or
conversion at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent
to receive such 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 1008) shall be
made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium, interest
or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose<PAGE>
<PAGE>
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 the Borough of Manhattan, The City
of New York, 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, notice 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) 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.
<PAGE>
<PAGE>
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
or Additional Amounts in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any such payment of principal (and premium, if
any) or interest or Additional Amounts; and
(3) at any time during the continuance of any Event of
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<PAGE>
<PAGE>
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), 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 to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight,
the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company.
SECTION 1005. Maintenance of Properties. The Company
will cause all of it properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained
and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times.
SECTION 1006. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it
or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or<PAGE>
<PAGE>
any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1007. Statement as to Compliance. The Company
will deliver to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this
Indenture and, in the event of any noncompliance, specifying
such noncompliance and the nature and status thereof. For
purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement
of notice under this Indenture.
SECTION 1008. 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' 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<PAGE>
<PAGE>
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 1009. Waiver of Certain Covenants. The
Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1006,
inclusive, if before or after the time for such compliance the
Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of
any series which are redeemable before their Stated Maturity<PAGE>
<PAGE>
shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, at least 45
days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued
on the same day with the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than 60 days prior to time 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 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 authorization 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<PAGE>
<PAGE>
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 amounts 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,
<PAGE>
<PAGE>
(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. At least
one Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) sufficient to pay on the Redemption Date the Redemption
Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant<PAGE>
<PAGE>
to Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office
or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further
that, except as otherwise provided with respect to Securities
convertible into Common Stock or Preferred Stock, installments
of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all
such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be
furnish 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 interst from the
Redemption Date at the rate borne by the Security.
<PAGE>
<PAGE>
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 duty executed by,
the Holder thereof or his attorney duly authorized in writing)
and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The
provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of such
Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. The Company may, in satisfaction of all or any
part of any mandatory sinking fund payment with respect to the
Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as
a credit Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
as provided for by the terms of such<PAGE>
<PAGE>
Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied
as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by
the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund
and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking
Fund. Not less than 60 days prior to each sinking 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 the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202, and the optional
amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be
added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the
terms of such Securities, if any, and (except as otherwise
specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of
any series subject to repayment in whole or in part at the<PAGE>
<PAGE>
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 at
least one Business Day prior to the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay
the principal (or, if so provided by the terms of the Securities
of any series, a percentage of the principal) of, and (except if
the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any
series subject to repayment at the option of the Holders thereof
will contain an "Option to Elect Repayment" form on the reverse
of such Securities. In order for any Security to be repaid at
the option of the Holder, the Trustee must receive at the Place
of Payment therefor specified in the terms of such Security (or
at such other place or places of which the Company shall from
time to time notify the Holders of such Securities) not earlier
than 60 days nor later than 30 days prior to the Repayment Date
(1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a Letter from a member of a national securities
exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the
United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any,
or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date
of such telegram, telex, facsimile transmission or Letter;
provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security
and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of
such Security, the principal<PAGE>
<PAGE>
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 fo 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
Became 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<PAGE>
<PAGE>
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<PAGE>
<PAGE>
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) below, and to have satisfied all of its other obligations
under such Securities and any coupons appertaining thereto and
this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and
premium, 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 1008, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section
notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1004 to
1006, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with<PAGE>
<PAGE>
respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for
the purposes of any direction, waiver, consent or declaration or
Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1006, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section
or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or
in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4)
or 501(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<PAGE>
<PAGE>
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 any case, in an amount,
sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, 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 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.
<PAGE>
<PAGE>
(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.
<PAGE>
<PAGE>
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in
Section 1404(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 301 or the terms of such Security to
receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made
in respect of such Security, or (b) a Conversion Event occurs in
respect of the currency or currency unit in which the deposit
pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of
(and premium, 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, subject to Section 606, 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.
<PAGE>
<PAGE>
ARTICLE FIFTEEN
SUBORDINATION
SECTION 1501. Agreement to Subordinate. The Company
agrees, and each Holder of Securities by accepting a Security
agrees, that the indebtedness evidenced by the Securities is
subordinated in right of payment, to the extent and in the
manner provided in this Article, to the prior payment in full of
all Senior Debt and that the subordination is for the benefit of
the holders of Senior Debt.
SECTION 1502. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to
receive payment in full in cash of the principal of and
interest (including interest accruing after the commencement
of any such proceeding) to the date of payment on the Senior
Debt before Holders of Securities shall be entitled to
receive any payment of principal of or interest on
Securities; and
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders of Securities would be
entitled but for this Article shall be made to holders of
Senior Debt as their interests may appear, except that
Holders of Securities may receive securities that are
subordinated to Senior Debt to at least the same extent as
the Securities.
SECTION 1503. Default on Senior Debt. The Company may
not pay principal of or interest on the Securities and may not
acquire any Securities for cash or property other than capital
stock of the Company if:
(1) a default on Senior Debt occurs and is continuing
that permits holders of such Senior Debt to accelerate its
maturity, and
(2) the default is the subject of judicial proceedings
or the Company receives a notice of the default from a
person who may give it pursuant to Section 1511. If the
Company receives any such notice, a similar notice received
within nine months thereafter relating to the same default
on the same issue of Senior Debt shall not be effective for
purposes of this Section.
<PAGE>
<PAGE>
The Company may resume payments on the Securities and
may acquire them when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at
that time.
SECTION 1504. Acceleration of Securities. If payment
of the Securities is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Securities when 120 days
pass after the acceleration occurs if this Article permits the
payment at that time.
SECTION 1505. When Distribution Must Be Paid Over. If
a distribution is made to Holders of Securities that because of
this Article should not have been made to them, the Holders of
Securites who receive the distribution shall hold it in trust
for holders of Senior Debt and pay it over to them as their
interests may appear.
SECTION 1506. Notice by Company. The Company shall
promptly notify the Trustee and any Paying Agent of any facts
known to the Company that would cause a payment of principal of
or interest on Securities to violate this Article.
SECTION 1507. Subrogation. After all Senior Debt is
paid in full and until the Securities are paid in full, Holders
of Securities shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt
to the extent that distributions otherwise payable to the
Holders of Securities have been applied to the payment of Senior
Debt. A distribution made under this Article to holders of
Senior Debt which otherwise would have been made to Holders of
Securities is not, as between the Company and Holders of
Securities, a payment by the Company on Senior Debt.
SECTION 1508. Relative Rights. This Article defines
the relative rights of Holders of Securities and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of
Securities, the obligation of the Company, which is absolute
and unconditional, to pay principal of and interest on the
Securities in accordance with their terms;
<PAGE>
<PAGE>
(2) affect the relative rights of Holders of
Securities and creditors of the Company other than holders
of Senior Debt; or
(3) prevent the Trustee or any Holders of Securities
from exercising its available remedies upon an Event of
Default, subject to the rights of holders of Senior Debt to
receive distributions otherwise payable to Holders of
Securities.
If the Company fails because of this Article to pay
principal of or interest on a Security on the due date, the
failure is still an Event of Default as provided elsewhere
herein.
SECTION 1509. Subordination May Not Be Impaired by
Trust. No right of any holder of Senior Debt to enforce the
subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Company or
by its failure to comply with this Indenture.
SECTION 1510. Distribution or Notice to
Representative. Whenever a distribution is to be made or a
notice given to holders of Senior Debt, the distribution may be
made and the notice given to their Representative.
SECTION 1511. Rights of Trustee and Paying Agent. The
Trustee or any Paying Agent may continue to make payments on the
Securities until it receives notice of facts that would cause a
payment of principal of or interest on the Securities to violate
this Article. Only the Company, a Representative or a holder of
an issue of Senior Debt that has no Representative may give the
notice.
* * * * *
<PAGE>
<PAGE>
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 all as of the day and year first
above written.
RESOURCE MORTGAGE CAPITAL, INC.
By:
Title:
Attest:
Title:
NAME OF TRUSTEE
as Trustee
By:
Title
Attest:
Title:
<PAGE>
<PAGE>
STATE OF MARYLAND )
) ss:
COUNTY OF )
On the day of , 1994, before me
personally came , to me known, who, being by me
duly sworn, did depose and say that he/she resides at
, that he/she is
of RESOURCE MORTGAGE CAPITAL, INC., one of the parties described
in and which executed the foregoing instrument, and that he/she
signed his/her name thereto by authority of the Board of
Trustees.
Notarial Seal
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the day of , 1994, before me
personally came , to me known, who, being by me duly
sworn, did depose and say that he/she resides at
, that he/she is a of , one of
the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by
authority of the Board of Directors.
Notarial Seal
Notary Public
COMMISSION EXPIRES
<PAGE>
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
Insert title or sufficient description of Securities to be
delivered
This is to certify that, as of the date hereof, and
except as set forth below, the above-captioned Securities held
by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States federal income
taxation regardless of its source ("United States person(s)"),
(ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations
Section 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
Resource Mortgage Capital, 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.
<PAGE>
<PAGE>
As used herein, "United States" means the United States
of America (including the States and the District of Columbia);
and its "possessions" include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
We undertake to advise you promptly by tested telex on
or prior to the date on which you intend to submit your
certification relating to the above-captioned Securities held by
you for our account in accordance with your Operating Procedures
if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not 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 certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States.
If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable
Name of Person Making
Certification
(Authorized Signator)
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
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 Resource Mortgage Capital,
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.
<PAGE>
<PAGE>
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
representation the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification
from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States.
If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would
be relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: 19
To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable
By:
<PAGE>
January 21, 1994
Resource Mortgage Capital, Inc.
10500 Little Patuxent Parkway
Suite 650
Columbia, Maryland 21044
Re: $200,000,000 Aggregate Offering Price of
Securities of Resource Mortgage Capital, Inc.
Ladies and Gentlemen:
We are acting as counsel for Resource Mortgage Capital,
Inc. (the "Company") in connection with the registration
statement on Form S-3 (the "Registration Statement") being filed
by you with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, (the
"Act") relating to the offering from time to time, as set forth
in the prospectus contained in the Registration Statement (the
"Prospectus") and as to be set forth in one or more supplements
to the Prospectus (each a "Prospectus Supplement"), by the
Company of up to $200,000,000 aggregate offering price of
(i) one or more series of debt securities (the "Debt
Securities"), (ii) one or more series of shares of preferred
stock, no par value (the "Preferred Stock"), (iii) shares of
common stock, par value $.01 per share (the "Common Stock"), or
(iv) warrants to purchase Common Stock, Preferred Stock or Debt
Securities. The Debt Securities, Preferred Stock, Common Stock
and Warrants are collectively referred to as the "Securities."
Any Debt Securities and Preferred Stock may be convertible into
shares of Common Stock.
The Debt Securities will be issued pursuant to
Indentures (the "Indentures") between the Company and a
financial institution ("Trustee") to be identified therein. The
forms of the Indentures are included as exhibits to the
Registration Statement. The Warrants will be issued under one
or more warrant agreements to be filed as an exhibit to the
Registration Statement at or prior to such time as the
Prospectus Supplement relating to the Warrants to be offered is
filed with the Commission (each, a "Warrant Agreement"). Each
Warrant Agreement will be between the Company and a financial
institution identified therein as warrant agent (each, a
"Warrant Agent").
<PAGE>
<PAGE>
Resource Mortgage Capital, Inc.
January 21 , 1994
Page 2
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken and
proposed to be taken by the Company in connection with the
authorization and issuance of the Securities and for the
purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition,
we have made such legal and factual examinations and inquiries,
including an examination of originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to
us as originals, and the conformity to authentic original
documents of all documents submitted to us as copies. We have
obtained and relied upon such certificates and assurances from
public officials we have deemed necessary.
Our opinion is limited to the federal laws of the
United States and the laws of the State of Virginia, and we
express no opinion with respect to the laws of any other
jurisdiction.
Subject to the foregoing and the other matters set
forth herein, it is our opinion that, as of the date hereof:
1. When appropriate corporate action by the Company
has been taken by the Company to authorize the Indentures, the
Indentures, when duly executed and delivered by the Company,
will be the legally valid and binding agreements of the Company,
enforceable against the Company in accordance with their terms.
2. When appropriate corporate action by the Company
has been taken to authorize the Debt Securities and when the
Debt Securities have been duly established by the applicable
Indenture, duly authenticated by the Trustee and duly executed
and delivered on behalf of the Company against payment therefor
in accordance with the terms and provisions of the applicable
Indenture and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Debt Securities
will constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms.
3. When appropriate corporate action has been taken
by the Company to authorize the issuance of the Preferred Stock,
and when the Preferred Stock has been duly established in
accordance with the terms of the Company's Articles of
Incorporation, as amended, and applicable law, and, upon<PAGE>
<PAGE>
Resource Mortgage Capital, Inc.
January 21, 1994
Page 3
issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the Preferred Stock will be validly
issued, fully paid and nonassessable.
4. When appropriate corporate action has been taken
by the Company to authorize the issuance of the Common Stock,
upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the Common Stock will be validly issued,
fully paid and nonassessable.
5. When appropriate corporate action has been taken
by the Company to authorize the Warrant Agreements and the final
terms thereof have been duly established, the Warrant
Agreements, when duly executed and delivered by the Company,
will constitute the legally valid and binding agreements of the
Company, enforceable against the Company in accordance with
their terms.
6. When appropriate corporate action has been taken
by the Company to authorize the Warrants and the Securities
issuable upon the exercise thereof, and when the final terms
thereof have been duly established and the Warrants have been
duly executed and delivered by the Company and countersigned by
the applicable Warrant Agent in accordance with the applicable
Warrant Agreement and delivered to and paid for by the
purchasers thereof in the manner contemplated by the
Registration Statement and/or the applicable Prospectus
Supplement, the Warrants will constitute legally valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms.
The opinions set forth above are subject to the
following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, and whether enforcement is
considered in a proceeding in equity or law, the discretion of
the court before which any proceeding therefor may be brought,
and (iii) the unenforceability under certain circumstances under
law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a
liability where such indemnification or contribution is contrary
to public policy.
To the extent that the obligations of the Company under
the Indentures may be dependent upon such matters, we assume for
purposes of this opinion that the Trustees thereunder are duly
organized, validly existing and in good<PAGE>
<PAGE>
Resource Mortgage Capital, Inc.
January 21, 1994
Page 4
standing under the laws of their respective jurisdictions of
organization; that the Trustees thereunder are duly qualified to
engage in the activities contemplated by the applicable
Indentures; that the Indentures have been duly authorized,
executed and delivered by the respective Trustees and constitute
the legally valid and binding obligations of the respective
Trustees enforceable against the respective Trustees in
accordance with their terms; that the Trustees are in
compliance, generally with respect to acting as a trustee under
the applicable Indentures, with all applicable laws and
regulations; and that the Trustees have the requisite
organizational and legal power and authority to perform their
obligations under the respective Indentures.
To the extent that the obligations of the Company under
each Warrant Agreement may be dependent upon such matters, we
assume for purposes of this opinion that the Warrant Agent is
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Warrant Agent
is duly qualified to engage in the activities contemplated by
the Warrant Agreement; that the Warrant Agreement has been duly
authorized, executed and delivered by the Warrant Agent and
constitutes the legally valid and binding obligation of the
Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in
compliance, generally with respect to acting as a Warrant Agent
under the Warrant Agreement, with all applicable laws and
regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its
obligations under the Warrant Agreement.
We consent to your filing this opinion as an exhibit to
the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the Prospectus included
therein. By giving the foregoing consent, we do not admit that
we come within the category of persons whose consent is required
under Section 7 of the Act.
This opinion is rendered only to you and is solely for
your benefit in connection with the transactions covered hereby.
This opinion may not be relied upon by you for any other
purpose, or furnished to, quoted to, or relied upon by any other
person, firm or corporation for any purpose, without our prior
written consent.
Very truly yours,
4136/BLUSEC
Exhibit 23.1
Accountants' Consent
The Board of Directors
Resource Mortgage Capital, Inc.
We consent to the use of our reports incorporated by reference herein and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK
Baltimore, Maryland
January 26, 1994
