<PAGE> 1
EXHIBIT 4.1
<PAGE> 2
Exhibit 4.1
INDENTURE
DATED AS OF OCTOBER 1, 2000
BY AND BETWEEN
AVNET, INC.
AND
BANK ONE TRUST COMPANY, N.A.,
TRUSTEE
PROVIDING FOR THE ISSUANCE
OF
DEBT SECURITIES
IN ONE OR MORE SERIES
<PAGE> 3
AVNET, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of October 1, 2000
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
<S> <C> <C>
Section 310 (a)(1) 607
(a)(2) 607
(b) 604, 608, 609
Section 311 604
Section 312 701
Section 313 702
Section 314 (a) 703
(a)(4) 1008
(c)(1) 103
(c)(2) 103
(e) 103
Section 315 601, 602
Section 316 (a)(last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(c) 105(e)
Section 317 (a)(1) 503
(a)(2) 504
Section 318 (a) 108
(c) 108
</TABLE>
NOTE: This reconcilation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
SECTION 101. Definitions ......................................... 1
SECTION 102. Other Definitions. .................................. 14
SECTION 103. Compliance Certificates and Opinions ................ 14
SECTION 104. Form of Documents Delivered to Trustee .............. 15
SECTION 105. Acts of Holders ..................................... 16
SECTION 106. Notices, etc., to Trustee and Company ............... 17
SECTION 107. Notice to Holders; Waiver ........................... 18
SECTION 108. Effect of Headings and Table of Contents ............ 19
SECTION 109. Successors and Assigns .............................. 19
SECTION 110. Separability Clause ................................. 19
SECTION 111. Benefits of Indenture ............................... 19
SECTION 112. Governing Law. ...................................... 19
SECTION 113. Legal Holidays ...................................... 19
SECTION 114. No Recourse Against Others .......................... 20
SECTION 115. Conflict of Indenture with Trust Indenture Act ...... 20
</TABLE>
ARTICLE TWO
SECURITIES FORMS
<TABLE>
<S> <C> <C>
SECTION 201. Forms of Securities ................................. 20
SECTION 202. Form of Trustee's Certificate of Authentication ..... 21
SECTION 203. Securities Issuable in Global Form .................. 21
</TABLE>
ARTICLE THREE
THE SECURITIES
<TABLE>
<S> <C> <C>
SECTION 301. Amount Unlimited; Issuable in Series ................ 22
SECTION 302. Denominations ....................................... 26
SECTION 303. Execution, Authentication, Delivery and Dating ...... 26
SECTION 304. Temporary Securities ................................ 29
SECTION 305. Securities Register; Registration of Transfer and
Exchange ............................................ 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities .... 35
</TABLE>
<PAGE> 5
ii
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset ............................. 36
SECTION 308. Optional Extension of Maturity ...................... 39
SECTION 309. Persons Deemed Owners ............................... 40
SECTION 310. Cancellation ........................................ 41
SECTION 311. Computation of Interest ............................. 42
SECTION 312. Currency and Manner of Payments in Respect of
Securities .......................................... 42
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent .......................................... 46
SECTION 314. CUSIP Numbers ....................................... 46
</TABLE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
SECTION 401. Satisfaction and Discharge of Indenture ............. 47
SECTION 402. Application of Trust Funds .......................... 48
</TABLE>
ARTICLE FIVE
REMEDIES
<TABLE>
<S> <C> <C>
SECTION 501. Events of Default ................................... 49
SECTION 502. Acceleration of Maturity; Rescission ................ 50
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee .......................................... 51
SECTION 504. Trustee May File Proofs of Claim .................... 52
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons ............................... 53
SECTION 506. Application of Money Collected ...................... 53
SECTION 507. Limitation on Suits ................................. 53
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................ 54
SECTION 509. Restoration of Rights and Remedies .................. 54
SECTION 510. Rights and Remedies Cumulative ...................... 54
SECTION 511. Delay or Omission Not Waiver ........................ 55
SECTION 512. Control by Holders of Securities .................... 55
SECTION 513. Waiver of Past Defaults ............................. 55
SECTION 514. Waiver of Stay or Extension Laws .................... 55
SECTION 515. Undertaking for Costs ............................... 56
</TABLE>
<PAGE> 6
iii
<TABLE>
<CAPTION>
Page
----
ARTICLE SIX
THE TRUSTEE
<S> <C> <C>
SECTION 601. Notice of Defaults .................................. 56
SECTION 602. Certain Rights of Trustee ........................... 57
SECTION 603. Not Responsible for Recitals or Issuance of
Securities .......................................... 58
SECTION 604. May Hold Securities ................................. 58
SECTION 605. Money Held in Trust ................................. 58
SECTION 606. Compensation and Reimbursement ...................... 59
SECTION 607. Corporate Trustee Required; Eligibility ............. 59
SECTION 608. Disqualification; Conflicting Interests ............. 60
SECTION 609. Resignation and Removal; Appointment of Successor ... 60
SECTION 610. Acceptance of Appointment by Successor .............. 61
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business ............................................ 62
SECTION 612. Appointment of Authenticating Agent ................. 63
</TABLE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
<TABLE>
<S> <C> <C>
SECTION 701. Disclosure of Names and Addresses of Holders ........ 65
SECTION 702. Reports by Trustee .................................. 65
SECTION 703. Reports by Company .................................. 65
SECTION 704. Calculation of Original Issue Discount .............. 66
</TABLE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
<TABLE>
<S> <C> <C>
SECTION 801. Company May Consolidate, etc., Only on Certain Terms 66
SECTION 802. Successor Substituted ............................... 67
</TABLE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
<TABLE>
<S> <C> <C>
SECTION 901. Supplemental Indentures Without Consent of
Holders ............................................. 67
SECTION 902. Supplemental Indentures with Consent of Holders ..... 69
SECTION 903. Execution of Supplemental Indentures ................ 70
</TABLE>
<PAGE> 7
iv
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 904. Effect of Supplemental Indentures ................... 70
SECTION 905. Conformity with Trust Indenture Act ................. 70
SECTION 906. Reference in Securities to Supplemental
Indentures .......................................... 70
</TABLE>
ARTICLE TEN
COVENANTS
<TABLE>
<S> <C> <C>
SECTION 1001. Payment of Principal, Premium and Interest .......... 71
SECTION 1002. Maintenance of Office or Agency ..................... 71
SECTION 1003. Money for Securities Payments to Be Held in Trust ... 73
SECTION 1004. Additional Amounts .................................. 74
SECTION 1005. Corporate Existence ................................. 75
SECTION 1006. Restrictions on Secured Debt. ....................... 75
SECTION 1007. Restriction on Sales and Leasebacks ................. 77
SECTION 1008. Statement as to Compliance .......................... 77
SECTION 1009. Waiver of Certain Covenants ......................... 78
</TABLE>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 1101. Applicability of Article ............................ 78
SECTION 1102. Election to Redeem; Notice to Trustee ............... 78
SECTION 1103. Selection by Trustee of Securities to Be Redeemed ... 78
SECTION 1104. Notice of Redemption ................................ 79
SECTION 1105. Deposit of Redemption Price ......................... 80
SECTION 1106. Securities Payable on Redemption Date ............... 80
SECTION 1107. Securities Redeemed in Part ......................... 82
</TABLE>
ARTICLE TWELVE
SINKING FUNDS
<TABLE>
<S> <C> <C>
SECTION 1201. Applicability of Article. ........................... 82
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities 82
SECTION 1203. Redemption of Securities for Sinking Fund ........... 83
</TABLE>
<PAGE> 8
v
<TABLE>
<CAPTION>
Page
----
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
<S> <C> <C>
SECTION 1301. Applicability of Article. ......................... 83
SECTION 1302. Repayment of Securities ........................... 84
SECTION 1303. Exercise of Option ................................ 84
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable ....................................... 84
SECTION 1305. Securities Repaid in Part ......................... 85
</TABLE>
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
<TABLE>
<S> <C> <C>
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. ......... 86
SECTION 1402. Defeasance and Discharge .......................... 86
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
</TABLE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 1501. Purposes for Which Meetings May Be Called. ........ 90
SECTION 1502. Call, Notice and Place of Meetings ................ 90
SECTION 1503. Persons Entitled to Vote at Meetings .............. 91
SECTION 1504. Quorum; Action .................................... 91
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings ........................... 92
SECTION 1506. Counting Votes and Recording Action of Meetings ... 93
</TABLE>
Exhibit A - FORM OF REGISTERED SECURITY
Exhibit B - FORM OF BEARER SECURITY
Exhibit C - FORMS OF CERTIFICATION
<PAGE> 9
INDENTURE, dated as of October 1, 2000, by and between Avnet, Inc., a New
York corporation (hereinafter called the "Company"), and BANK ONE TRUST COMPANY,
N.A., a national banking association, as trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes unsecured debt securities (hereinafter called the "Securities")
evidencing its subordinated or unsubordinated indebtedness, which may or may not
be convertible into or exchangeable for any securities of any Person (including
the Company), and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of one or more series of
the Securities, unlimited as to principal amount, to bear such rates of
interest, 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 required to be part of 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 or a series thereof, and
coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE> 10
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Generally Accepted Accounting
Principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five, Article Six
and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified in
Section 105.
"additional amounts" has the meaning set forth in Section 1004.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling, or controlled by, or under 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.
"Attributable Debt" means, as to any particular lease, the greater of the
fair market value of the property subject to the lease (as determined by the
Board of Directors) or the total net amount of rent required to be paid during
the remaining term of the lease, discounted by the weighted average effective
interest cost per annum of the Outstanding Securities of all series compounded
semi-annually.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 612.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
<PAGE> 11
3
"Board of Directors" means the board of directors of the Company.
"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 or any duly authorized committee of such board, 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 the Indenture or in the Securities, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location are authorized
or obligated by law or executive order to close, unless otherwise specified for
a particular series of Securities.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Clearstream" means Clearstream Banking, societe anonyme, 67 Bd
Grande-Duchesse Charlotte, L-2967 Luxembourg.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
date of this Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person. To the extent necessary to comply with the requirements
of the provisions of Sections 310 through 317 of the Trust Indenture Act as they
are applicable to the Company, the term "Company" shall include any other
obligor with respect to the Securities for the purposes of complying with such
provisions.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Company (i) by its Chairman, any Vice Chairman, any
Senior Vice President or any Vice President and (ii) by its Secretary or any
Assistant Secretary and delivered to the Trustee; provided, however, that such
written request or order may be signed by any two of the officers listed in
clause (i) above in lieu of being signed by one of such officers listed in such
clause (i) and one of the officers listed in clause (ii) above.
<PAGE> 12
4
"Consolidated Net Assets" means total assets after deducting therefrom all
current liabilities as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with Generally
Accepted Accounting Principles.
"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, or (ii) any currency unit (or
composite currency) for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at 1 Bank One Plaza,
Suite IL1 0126, Chicago, Illinois 60670-0126, Attention: Corporate Trust
Administration, except that for purposes of Section 1002, such term shall mean
the office or agency of the Trustee in the Borough of Manhattan, the City of New
York, which office at the date hereof is located at 14 Wall Street, 8th Floor,
New York, New York 10005, Attention: Corporate Trust Administration.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency
unit or currency units including, without limitation, the euro, issued by the
government of one or more countries or by any reorganized confederation or
association of such governments.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangements designed to protect the
Company or any Subsidiary against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"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.
"Election Date" has the meaning specified in Section 312(h).
"EMU" means the economic and monetary union as contemplated in the Treaty
on European Union.
<PAGE> 13
5
"euro" means the single currency of Participating Member States introduced
at the start of the third stage ("Stage III") of EMU pursuant to the Treaty on
European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent", with respect to Securities of or within any series,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank designated pursuant to Section 301
or Section 313.
"Exchange Rate Officer's Certificate" means a certificate to be delivered
pursuant to Section 312(c), setting forth (i) the applicable Market Exchange
Rate or the applicable bid quotation and (ii) the Dollar or Foreign Currency
amounts of principal (and premium, if any) and interest, if any (on an aggregate
basis and on the basis of a Security having the lowest denomination principal
amount determined in accordance with Section 302 in the relevant currency or
currency unit), payable with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation, signed by the Chief
Financial Officer, the Treasurer, any Vice President or any Assistant Treasurer
of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
codified in Title 11 of the United States Code, as amended from time to time.
"Foreign Currency" means any Currency including, without limitation, the
euro, 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.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination is
made or having a maturity of 12 months or less but by its terms being renewable
or extendible beyond 12 months from such date at the option of the borrower, and
(ii) rental obligations payable more than 12 months from such date under leases
which are capitalized in accordance with Generally Accepted Accounting
Principles (such rental obligations to be included as Funded Debt at the amount
so capitalized and to be included as an asset for the purposes of the definition
of Consolidated Net Assets).
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, as in
effect from time to time on or after the date of this Indenture, including,
without limitation, those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
<PAGE> 14
6
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession.
"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", with respect to any series of Securities, 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 that series
of Securities established as contemplated by Section 301; provided, however,
that, if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of those particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is 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.
<PAGE> 15
7
"Indexed Security" means a series of Securities as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"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 1004, includes such
additional amounts.
"Interest Payment Date", with respect to any series of Securities, means
the Stated Maturity of an installment of interest on such series.
"Market Exchange Rate" means, unless otherwise specified with respect to
any series of the Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"Maturity", when used with respect to any series of Securities, means the
date on which the principal of such series or an installment of principal
becomes due and payable as
<PAGE> 16
8
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption, notice of option to elect repayment, notice
of exchange or conversion, or otherwise.
"Mortgage" has the meaning specified in Section 1006.
"Officers' Certificate" means a certificate signed by (i) the Chairman, any
Vice Chairman, any Senior Vice President or any Vice President of the Company,
and (ii) the Secretary or any Assistant Secretary of the Company and delivered
to the Trustee; provided, however, that such certificate may be signed by two of
the officers listed in clause (i) above in lieu of being signed by one of such
officers listed in such clause (i) and one of the officers listed in clause (ii)
above.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company and who shall be acceptable to the Trustee. Each such opinion
shall include the statements provided for in Trust Indenture Act Section 314(e)
to the extent applicable.
"Original Issue Discount Security" means any series of the Securities which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", with respect to any series of Securities, means, as of the
date of determination, all Securities of such series theretofore authenticated
and delivered under this Indenture, except:
(i) Securities of such series theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities of such series, 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 series of Securities and any coupons appertaining
thereto, provided that, if such series of 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 of such series, 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; and
<PAGE> 17
9
(iv) Securities of such series which have been paid pursuant to the
third paragraph of Section 306, or in exchange for or in lieu of which
other Securities of such series have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of any series of 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 316,
(i) the principal amount of an Original Issue Discount Security that
may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount
of principal thereof that would be (or shall have been declared to be) due
and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502,
(ii) the principal amount of any series of the Securities denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such series is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or, in the
case of an Original Issue Discount Security or Indexed Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (i) above or (iii) below, respectively) 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) a series of the Securities owned by the Company or any other
obligor upon such series 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
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities
<PAGE> 18
10
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.
"Participating Member State" means each state so described in any EMU
legislation.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on, any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, limited or general partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series
or any coupons, means the place or places where the principal of (and premium,
if any) and interest, if any, on such series are payable as specified and as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Principal Property" means any manufacturing or assembly plant or warehouse
owned at the date hereof or hereafter acquired by the Company or any Restricted
Subsidiary of the Company which is located within the United States and the
gross book value (including related land and improvements thereon and all
machinery and equipment included therein without deduction of any depreciation
reserves) of which on the date as of which the determination is being made
exceeds 2% of Consolidated Net Assets other than
(i) any such manufacturing or assembly plant or warehouse or any other
real property or any portion thereof (together with the land on which it is
erected and fixtures comprising a part thereof) which is financed by
industrial development bonds which are tax exempt pursuant to Section 103
of the Internal Revenue Code (or which receive similar tax treatment under
any subsequent amendments thereto or any successor laws thereof or under
any other similar statute of the United States),
(ii) any property which in the opinion of the Board of Directors is
not of material importance to the total business conducted by the Company
as an entirety, or
<PAGE> 19
11
(iii) any portion of a particular property which is similarly found
not to be of material importance to the use or operation of such property.
"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 established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the dated 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 any
officer assigned by the Trustee to administer corporate trust matters at its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i) substantially
all the property of which is located, or substantially all the business of which
is carried on, within the United States and (ii) which owns a Principal
Property.
"Security" or "Securities" 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.
<PAGE> 20
12
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307(a)(1).
"Stated Maturity", when used with respect to any series of Securities or
any installment of principal thereof or interest thereon, means the date
specified in such series or a coupon representing such installment of interest
as the fixed date on which the principal of such series or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308, and when used with respect to any other
indebtedness or any installment of principal or interest thereon (or scheduled
or required redemption or dividend payment), means the date specified in such
indebtedness as the fixed date on which the principal (or scheduled or required
redemption or dividend payment) of such indebtedness or such installment of
principal or interest (or scheduled or required redemption or dividend payment)
is due and payable.
"Subsidiary" means any corporation more than 50% of the outstanding Voting
Stock of which at the of determination is owned, directly or indirectly, by the
Company and/or one or more other Subsidiaries.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957, as
amended by the Single European Act 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 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 Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien
<PAGE> 21
13
fiduciary of a foreign estate or trust, or a foreign partnership one or more of
the members of which is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"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.
"Voting Stock" means shares of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect directors, managers or trustees of a company or corporation (irrespective
of whether or not at the time shares of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a series of Security (or, if applicable, at the most recent
redetermination of interest on such series) and as set forth in such series in
accordance with generally accepted United States bond yield computation
principles.
<PAGE> 22
14
SECTION 102. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
Defined in
Term Section
---- -------
<S> <C>
"Common Depositary" 304(b)
"Component Currency" 312(h)
"Conversion Date" 312(d)
"covenant defeasance" 1403
"Debt" 1006
"Defaulted Interest" 307
"defeasance" 1402
"Exchange Date" 304(b)
"Optional Reset Date" 307(b)
"Reset Notice" 307(b)
"Specified Amount" 312(h)
"Subsequent Interest Period" 307(b)
"Surviving Entity" 801
"Valuation Date" 312(c)
</TABLE>
SECTION 103. 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 (including any covenants compliance with which constitutes a condition
precedent) 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.
<PAGE> 23
15
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 303 and 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 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
<PAGE> 24
16
SECTION 105. 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 either (x) one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing, or (y) the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may be proved in any manner
that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
sufficient.
<PAGE> 25
17
(e) If the Company shall solicit from the Holders of any series 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 such
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 percentage of any series 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, by virtue of the requisite
percentage having been obtained, not later than eleven months after the record
date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 106. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or other Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished, delivered or filed in
writing to or with the Trustee at its Corporate Trust Office, which, as of
the date of this Indenture, is: 1 Bank One Plaza, Mail Suite IL1-0126,
Chicago, Illinois, 60670-0126, Attention: Corporate Trust Administration;
or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished, delivered or filed in writing to the Company
addressed to it at 2211 South 47th Street, Phoenix, Arizona 85034,
Attention: Corporate Secretary, or at any other address previously
furnished in writing to the Trustee by the Company.
<PAGE> 26
18
SECTION 107. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
the city of New York and in such other city or cities as may be specified in
such Securities on a Business Day in New York, 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 Holders 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> 27
19
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 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE. In case any provision in
this Indenture or in 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 111. BENEFITS OF INDENTURE. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, 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 respective claim under this
Indenture.
SECTION 112. GOVERNING LAW. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 113. 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 of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
<PAGE> 28
20
SECTION 114. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or shareholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting any of the Securities waives and releases all
such liability.
SECTION 115. CONFLICT OF INDENTURE WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by Sections 310 to 318, inclusive, of the
Trust Indenture Act, or conflicts with any provision (an "incorporated
provision") required by or deemed to be included in this Indenture by operation
of such Trust Indenture Act Sections, such imposed duties or incorporated
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or excluded, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms set forth in Exhibit A and B
to this Indenture, respectively, or in such other form 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, in each case
with 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, typewritten 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.
<PAGE> 29
21
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.
as Trustee
By
---------------------------------
Authorized Officer
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement, delivery
or redelivery of a Security in global form shall be in writing but need not
comply with Section 103 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of the penultimate
paragraph of Section 303 shall apply to any Security represented by a Security
in global form if such Security was never issued and sold by the Company and the
Company delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the penultimate paragraph of
Section 303.
<PAGE> 30
22
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.
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, 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 shall be determined or extended, on which the principal of the
Securities of the series shall be payable;
<PAGE> 31
23
(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 shall 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 such
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on Securities of the series shall be payable, where any Registered
Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable, and where 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 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) any deletions from, modifications of or additions to, the
redemption provisions set forth in Section 1102, and 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 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 not as provided in Section 302, the denomination or
denominations in which any 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 total 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 the method by which such portion shall be
determined;
<PAGE> 32
24
(11) if other than the Dollar, the Currency or Currencies in
which payment of the principal of (or premium, if any) or interest, if
any, on, the Securities of the series shall be made or in which the
Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
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, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on, the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in one or more
Currencies other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including the
Election Date), and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate
between the Currency or Currencies in which such Securities are
denominated or stated to be payable and the Currency or Currencies in
which such Securities are to be paid, in each case in accordance with,
in addition to or in lieu of any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1009)
or other undertakings of the Company with respect to Securities of the
series, whether or not such Events of Default, covenants or
undertakings are consistent with the Events of Default, covenants or
undertakings 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 in
certificated form 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
<PAGE> 33
25
Registered Securities of the series are to be issuable as a global
Security, the identity of the depository 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 such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay additional amounts as contemplated by
Section 1004 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);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(24) whether the Securities of the series are to be
subordinated or unsubordinated indebtedness of the Company, and to the
extent that such Securities are to be subordinated indebtedness of the
Company, the terms and conditions of such subordinated indebtedness;
<PAGE> 34
26
(25) any other terms of or provisions applicable to the
series, which terms shall not be inconsistent with the provisions of
this Indenture or the requirements of the Trust Indenture Act;
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 set forth in an Officers'
Certificate pursuant to this Section 301.
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, any Vice Chairman, any Senior Vice
President, any Vice President or its Treasurer, under its corporate seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these authorized 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 directors or 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
<PAGE> 35
27
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, or a definitive
Bearer Security may be delivered in exchange for a temporary Bearer Security
pursuant to Section 304(a), only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit C-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 definitive Bearer Security is
delivered and the date on which any temporary Bearer Security first becomes
exchangeable for such definitive 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 canceled. 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, 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,
(a) that all conditions precedent which the Company
must perform have been complied with for the authentication
and delivery of such Securities by the Trustee;
(b) that the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(c) that the terms of such Securities and any coupons
have been established in conformity with the provisions of
this Indenture; and
(d) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the
Trustee and issued by the Company in accordance with the terms
of this Indenture and subject to any
<PAGE> 36
28
conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, subject to applicable bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights,
to general equitable principles and to such other
qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and
any coupons; and
(ii) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
Notwithstanding the provisions of Section 301 and of this
Section 303, 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 the Company Order, Opinion of Counsel or
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.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
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 in Section 202 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 310 together
with a written statement (which need not comply with Section 103 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
<PAGE> 37
29
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.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of substantially all of its properties and assets to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
successor Person which shall have received a conveyance, transfer, lease or
other disposition as aforesaid, shall have executed an indenture supplemental
hereto with the Trustee pursuant to Article Eight, any of the Securities of any
series authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities of any series
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Securities of any series surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver Securities of any series as specified in such request
for the purpose of such exchange. If the Securities of any series shall at any
time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Securities of any series, such successor Person, at the option
of any Holder but without expense to such Holder, shall provide for the exchange
of all Securities of any series at the time Outstanding held by such Holder for
Securities of any series authenticated and delivered in such new name.
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 directors or 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 Bearer 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
<PAGE> 38
30
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 Bearer
Securities issued in global form. If Bearer temporary Securities of any series
are issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Clearstream, 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 Bearer Security of a series (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities of such series, in aggregate
principal amount equal to the principal amount of such temporary global Bearer
Security, executed by the Company. On or after the Exchange Date, such temporary
global Bearer Security shall be surrendered by the Common Depositary to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities of such series without
charge, and the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary global Bearer Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Bearer Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Bearer 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 Clearstream 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 C-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.
<PAGE> 39
31
Unless otherwise specified in such temporary global Bearer
Security, the interest of a beneficial owner of Securities of a series in a
temporary global Bearer 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 Clearstream, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or Clearstream, as the case may
be, a certificate in the form set forth in Exhibit C-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 Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities, and each Paying
Agent. Unless otherwise specified in such temporary global Bearer Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Bearer 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 Clearstream. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Bearer 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
Bearer Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit C-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 Clearstream, 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 C-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 Bearer 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 premium, if any) or
interest, if any, owing with respect to a beneficial interest in a temporary
global Bearer Security will be made unless and until such interest in such
temporary global Bearer Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and
<PAGE> 40
32
Clearstream 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 in accordance with Section 1003.
SECTION 305. SECURITIES REGISTER; 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.
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.
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
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
<PAGE> 41
33
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interests
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 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 interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities of the same series without charge,
<PAGE> 42
34
and the Trustee shall authenticate and deliver, in exchange for each portion of
such permanent 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 permanent global Security to be exchanged which,
unless the Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, as specified as contemplated by Section 301, shall
be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of 15 business 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. Promptly following any partial exchange and any endorsement thereon to
reflect the amount represented by such exchange, such permanent global Security
shall be returned by the Trustee to the Common Depository or such other
depository referred to above. If a Registered Security is issued in exchange for
any portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the 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 303, 304, 906, 1107 or 1305 not involving any
transfer.
<PAGE> 43
35
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before selection of Securities of that series to
be redeemed under Section 1103 and ending at the close of business on (A) if
such Securities are issuable only as Registered Securities, the day of the
mailing of the relevant notice of redemption and (B) if such Securities are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if such Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen
<PAGE> 44
36
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; provided, however, that payment
of principal of (and premium, if any) and interest, if any, on, Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security 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.
Notwithstanding Section 510, the provisions of this Section
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET. (a) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest,
if any, 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, if any, on any
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the Security Register or (ii) transfer to an account maintained by the payee
inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, 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, but only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature.
<PAGE> 45
37
Unless otherwise provided as contemplated by Section 301,
every permanent global Bearer Security will provide that interest, if any,
payable on any Interest Payment Date will be paid to each of Euroclear and
Clearstream with respect to that portion of such permanent global Security held
for its account by the Common Depositary, for the purpose of permitting each of
Euroclear and Clearstream to credit the interest, if any, 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 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 in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after
<PAGE> 46
38
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. 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.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
45 but not more than 60 days prior to an Optional Reset Date for such Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 107, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new interest
rate (or such new spread or spread multiplier, if applicable) and
<PAGE> 47
39
(ii) the provisions, if any, for redemption during the period from such Optional
Reset Date to the next Optional Reset Date or if there is no such next Optional
Reset Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 107, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, provided for in Section 1303 if the
Holder has tendered any Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
<PAGE> 48
40
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 107,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 107, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee provided in Section 1303 shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that, if
the Holder has tendered any Security for repayment pursuant to an Extension
Notice, the Holder may by written notice to the Trustee revoke such tender for
repayment until the close of business on the tenth day before the Original
Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS. Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Sections 305 and 307) interest, if any, 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> 49
41
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. CANCELLATION. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons, and Securities and coupons
surrendered directly to the Trustee for any such purpose, shall be promptly
canceled 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
canceled 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 canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
upon Company request, 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> 50
42
SECTION 311. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES.
(a) Unless otherwise specified with respect to any series of
Securities pursuant to Section 301, with respect to Registered Securities of any
series not permitting the election provided for in paragraph (b) below or the
Holders of which have not made the election provided for in paragraph (b) below,
and with respect to Bearer Securities of any series, except as provided in
paragraphs (d) and (e) below, payment of the principal of (and premium, if any)
and interest, if any, on, any Registered or Bearer Security of such series will
be made in the Currency in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 312 may be modified
or superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date (as defined in
paragraph (h) below) immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such Currency, such election
will remain in effect for such Holder or any transferee of such Holder until
changed by such Holder or such transferee by written notice to the Trustee for
such series of Registered Securities (but any such change must be made not later
than the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date and
no such change of election may be made with respect to payments to be made on
any Registered Security of such series with respect to which an Event of Default
has occurred or with respect to which the Company has deposited funds pursuant
to Article Four or Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect repayment has been sent
by such Holder or such transferee). Any Holder of any such Registered Security
who shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 312(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
<PAGE> 51
43
(c) If the election referred to in paragraph (b) above has
been provided for pursuant to Section 301, then, unless otherwise specified
pursuant to Section 301, not later than the fourth Business Day after the
Election Date for each payment date for Registered Securities of any series, the
Exchange Rate Agent will deliver to the Company a written notice specifying the
Currency in which Registered Securities of such series are payable, the
aggregate amount of principal of (and premium, if any) and interest, if any, on,
the Registered Securities to be paid on such payment date in such Currency, and
the amounts in such Currency so payable in respect of the Registered Securities
as to which the Holders of Registered Securities shall have elected to be paid
in another Currency as provided in paragraph (b) above. If the election referred
to in paragraph (b) above has been provided for pursuant to Section 301 and if
at least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on, the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee of each
such series of Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a
Foreign Currency other than a currency unit, the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) of
this Section 312.
<PAGE> 52
44
`
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant
currency unit.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions
thereof which were represented in the relevant currency unit
on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal
to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the
Specified Amount of such Component Currency shall be replaced
by amounts of such two or more currencies, having an aggregate
Dollar Equivalent value at the Market Exchange Rate on the
date of such replacement equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division, and
such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after
the Conversion Date of the relevant currency unit, a
Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to
any Component Currency of such currency unit and is continuing
on the applicable Valuation Date, the Specified Amount of such
Component Currency shall, for purposes of calculating the
Dollar
<PAGE> 53
45
Equivalent of the Currency Unit, be converted into Dollars at
the Market Exchange Rate in effect on the Conversion Date of
such Component Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days
prior to Maturity, as the case may be, or such other prior
date for any series of Registered Securities as specified
pursuant to clause 13 of Section 301 by which the written
election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 107 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to any currency
unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 107 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
<PAGE> 54
46
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 314. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and,
if so, the Trustee shall indicate the "CUSIP" and "CINS" numbers of the
Securities in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
<PAGE> 55
47
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 expressly provided for herein or pursuant hereto and any right to receive
additional amounts, as provided in Section 1004), 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
mutilated, destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
<PAGE> 56
48
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 such purpose an amount, in
the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, 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 with respect to
any series of Securities, 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 612 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of clause (1) of this Section 401,
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons 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 Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, 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.
<PAGE> 57
49
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. Unless otherwise specified
with respect to a series of Securities as contemplated by Section 301, an "Event
of Default", wherever used herein with respect to any series of Securities,
means any one of the following events:
(a) the Company defaults in the payment of any interest upon
any Security of that series or any coupon pertaining thereto, when such
interest or coupon becomes due and payable and such Default continues
for a period of 30 days; or
(b) the Company defaults in the payment of the principal of,
or premium, if any, on, any Security of that series when the same
becomes due and payable at its Maturity; or
(c) the Company defaults in the performance of, or breaches,
any covenant, warranty or agreement of the Company with respect to any
Security of that series (other than a Default in the performance, or
breach, of a covenant, warranty or agreement that is specifically dealt
with elsewhere in this Section), and such Default or breach continues
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 stating that such notice is a "Notice of Default"
hereunder; or
(d) the Company defaults in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that series;
or
(e) a decree or order is entered by a court having
jurisdiction in the premises (i)for relief in respect of the Company as
debtor in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal or state law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or similar
law or (ii) adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under the
Federal Bankruptcy Code or any other applicable federal or state law
relating to bankruptcy, insolvency, reorganization or relief of debtors
or other similar law, or (iii) appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of any of its property, or
(iv) ordering the winding up or liquidation of its affairs, and any
such decree or order remains unstayed and in effect for a period of 60
consecutive days; or
<PAGE> 58
50
(f) the Company institutes a voluntary case or proceeding
under the Federal Bankruptcy Code or any other applicable federal or
state law relating to bankruptcy, insolvency, reorganization or relief
of debtors or similar law or any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the Company consents to the
entry of a decree or order for relief in respect of the Company in any
involuntary case or proceeding under the Federal Bankruptcy Code or any
other applicable federal or state law relating to bankruptcy,
insolvency, reorganization or relief of debtors or similar law or to
the institution of bankruptcy or insolvency proceedings against the
Company, or the Company files a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or similar law, or the Company
consents to the filing of any such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the Company makes an
assignment for the benefit of creditors, or the Company admits in
writing its inability to pay its debts generally as they become due or
takes corporate action in furtherance of any such action; or
(g) there is a Default in the performance or breach of any of
the provisions of Article Eight.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION.
(a) If an Event of Default (other than an Event of Default
specified in Section 501(e) and 501(f)) occurs and is continuing with
respect to Securities of any series, the Trustee or the Holders of at
least 25% of the principal amount of the Securities of that series then
Outstanding, by written notice to the Company (and to the Trustee if
such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare all unpaid principal of, and
premium, if any, and accrued Interest if any, on the Securities of that
series (or, in the case of Original Issue Discount Securities or
Indexed Securities, the amount specified in the terms thereof) to be
due and payable immediately. Thereupon the Trustee may, at its
discretion, proceed to protect and enforce the rights of Holders of the
Securities of that series by appropriate judicial proceeding.
(b) If an Event of Default specified in any of Sections 501(e)
and 501(f) occurs and is continuing, then the principal amount of all
Securities of that series, together with any premium and accrued
interest, shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.
(c) After a declaration of acceleration of any series of
Securities, but before a judgment or decree for payment of the money
due has been obtained by the Trustee, by
<PAGE> 59
51
written notice to the Company and the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
such series, may annul such declaration of acceleration, provided, in
each case, that (a) the Company has paid or deposited with the Trustee
a sum sufficient to pay (i) all sums paid or advanced by the Trustee
under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii)
all overdue Interest on all Securities of that series, (iii) the
principal of and premium, if any, on that series of Securities which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by that series, and (iv) to the
extent that payment of such interest is lawful, interest upon overdue
Interest at the rate borne by that series of Securities; and (b) all
Events of Default, other than the non-payment of principal of that
series of Securities which have become due solely by the declaration of
acceleration, have been cured or waived. No such annulment shall affect
any subsequent default or impair any right consequent thereto.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if
(a) a Default occurs in the payment of any Interest on
Securities of any series and any related coupon when such Interest
becomes due and payable and such Default continues for a period of 30
days, or
(b) a Default occurs in the payment of the principal of, or
premium, if any, on Securities of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Securities of such series and coupons, the whole amount then due and
payable on such series of Securities and coupons for principal, premium, if any
and Interest, if any, with interest upon the overdue principal, premium, if any,
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of Interest, at the rate borne by the Securities of
such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the 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 the
Securities of such series, wherever situated.
<PAGE> 60
52
If an Event of Default occurs and is continuing with respect
to Securities of any series, 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 under this Indenture by such appropriate
private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights.
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 of
any series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Security of
such 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 or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any and Interest, if any, owing and unpaid in
respect of the Securities of such series (or in the case of Original
Issue Discount Securities or Indexed Securities, such portion of the
principal as may be provided in the terms thereof) 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
(b) to collect and receive any moneys, securities or other
property payable or deliverable upon the exchange of the Securities of
such series in connection with any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is
hereby authorized by each Holder of Securities of such series and
related 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 such Holders, to pay the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize, consent to, accept or adopt on behalf of a Holder of a
Security of any series or related coupon any proposal, plan of reorganization,
arrangement, adjustment or composition or other similar arrangement 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 of any
series of coupon in any such proceeding.
<PAGE> 61
53
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture or
the Securities of any series or the coupons may be prosecuted and enforced by
the Trustee without the possession of any such 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 and 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 of any series 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, if any, 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, if any, in respect of which or for the benefit of which such
money has been collected (or, in the case of Original Issue Discount
Securities or Indexed Securities, the amount specified in the terms
thereof) 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) and interest, if any, respectively;
and
THIRD: To the payment of the remainder, if any, to the Company
or any other Person or Persons entitled thereto.
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 such
Security, 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;
<PAGE> 62
54
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on, 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, 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.
<PAGE> 63
55
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
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 or expose the Trustee to personal liability,
and
(2) subject to the provisions of Trust Indenture Act Section
315, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past Default or Event of Default hereunder with
respect to such series and its consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on, any Security of such series or 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 STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the
<PAGE> 64
56
performance of this Indenture; and the Company (to the extent that it may
lawfully doso) 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. The Company and the
Trustee agree, and each Holder of Securities of any series or coupon by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, or to any suit instituted by any Holder of Securities of any series or
coupon for the enforcement of the payment of the principal of, or premium, if
any or interest, if any on, Securities of any series on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
or after the Redemption Date) or to any suit instituted by any Holder of
Securities of any series or coupon, or group of such Holders, holding in the
aggregate more than 10% in principal amount of the Securities.
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 to the Holder of such series 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, if any, on, any Security
of such series, or in the payment of any sinking or purchase fund installment
with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines 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(c) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof.
<PAGE> 65
57
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of TIA Sections 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 a Board Resolution,
an Opinion of Counsel or an Officers' Certificate.
(4) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(5) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled during normal business hours upon
reasonable notice to examine the books, records and premises of the
Company, personally or by agent or attorney.
<PAGE> 66
58
(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.
(8) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of any
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, and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company with respect to the
Securities are true and accurate, subject to the qualifications set forth
therein. 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> 67
59
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) To pay to the Trustee from time to time such compensation
for all services rendered by it hereunder as has been agreed upon in
writing (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.
(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.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim 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, if any, on, particular Securities or any coupons.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Sections 501(e) and (f), the
expenses and compensation for such services are intended to constitute expenses
of administration under the Federal Bankruptcy Code or any similar federal,
state or foreign law for the relief of debtors.
The provisions of this Section 606 shall survive the
resignation or removal of the Trustee and the termination of this Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be qualified 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 any 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
<PAGE> 68
60
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
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 609. 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.
(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
(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
<PAGE> 69
61
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
a notice of resignation or the delivery of an act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) 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.
(g) 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 107.
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 610. 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
<PAGE> 70
62
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. 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
<PAGE> 71
63
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 612. 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 thereof, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, 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> 72
64
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 107. 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.
BANK ONE TRUST COMPANY, N.A,,
as Trustee
By
--------------------------------
as Authenticating Agent
By
--------------------------------
Authorized Officer
<PAGE> 73
65
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, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange.
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company
files the same with the Commission, copies of the annual reports and of
the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections,
then it 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 Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions
<PAGE> 74
66
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. CALCULATION OF ORIGINAL ISSUE DISCOUNT. Upon
request of the Trustee, the Company shall file with the Trustee of a series of
Securities, promptly at the end of each calendar year, a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods), if any, accrued on Outstanding Securities of such series as of
the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with, or merge with or into, any other
Person or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets substantially as an entirety to
any Person or group of affiliated Persons unless at the time and after giving
effect thereto:
(1) either (a) the Company shall be the continuing company or
corporation or (b) the Person (if other than the Company) formed by
such consolidation or merger, or to which such sale, assignment,
transfer, lease, conveyance or disposition shall have been made (the
"Surviving Entity"), is a corporation duly organized and validly
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall, in either case,
expressly assume by supplemental indenture hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under each Outstanding series of the
Securities and under this Indenture, and this Indenture shall remain in
full force and effect;
(2) immediately prior to such transaction, and immediately
after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture,
<PAGE> 75
67
if one is required by this Section 801, comply with this Section 801
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger or any sale, assignment, transfer, lease or conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 801, any Surviving Entity formed by such consolidation
or into which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein; and in the event of any such conveyance or transfer, the
Company shall be discharged from all the obligations and covenants under this
Indenture and the Securities and coupons may be dissolved and liquidated.
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 in accordance with Section 801
of another Person to the Company and the assumption by any such
successor of the covenants of the Company contained herein and in any
series of Securities ; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add 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
<PAGE> 76
68
of the Holders of Securities of any series or any related coupons in
any material respect; or
(4) to add any additional Events of Default; 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 and related coupons; 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
or exchangeable for any securities of any Person (including the
Company); 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; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding 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 or 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; or
(11) to comply with the requirements of the Commission under
the Trust Indenture Act; or
(12) to make any other change that does not adversely affect
the rights of any Holder of Securities then Outstanding.
<PAGE> 77
69
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 of a series 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 with respect to such series, or of modifying in any
manner the rights of the Holders of such series and any related coupons under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security of a series
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,
such series, or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption thereof,
or reduce any obligation of the Company to pay additional amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the portion of the principal of
an Original Issue Discount Security or Indexed Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 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 such series, or change the
method in which amounts of payments of principal or any interest
thereon are determined, or change any Place of Payment where, or the
Currency in which, such series or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or
after the Redemption Date or the Repayment Date, as the case may be),
or adversely affect any right to convert or exchange any Security of
such series as may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such 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 (of
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 1009, except to increase the percentage or principal amount
of the Outstanding Securities of such series the consent of whose
Holders is required for the actions described in such sections, 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 of such series affected thereby.
<PAGE> 78
70
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 modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Trust Indenture Act Sections 315(a) through 315(d) and Section 602
hereof) 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> 79
71
ARTICLE TEN
COVENANTS
Unless otherwise specified with respect to a series of
Securities as contemplated by Section 301, the following covenants shall apply
to all series of Registered Securities.
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees, for the benefit of the Holders of each series of
Securities, that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on, 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 Bearer Securities
on or before Maturity, other than additional amounts, if any, payable as
provided in Section 1004 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 such series an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible may be
surrendered for conversion, and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in the 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, 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 Securities of that series that are
convertible may be surrendered for conversion, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on any stock exchange
located outside the United States and such stock
<PAGE> 80
72
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United States
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, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served.
The Company will give prompt written notice to the Trustee,
and prompt notice to the Holders of Securities of such series as provided in
Section 107, 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 in respect of any series of Securities, 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 at any Place of Payment for such
series located outside the United States, 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 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 premium, if any) and interest, if any, on, any Bearer Security
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 or interest, as the case may be, at all
offices or agencies outside the United States maintained for such 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 (in or outside any Place of Payment) where the Securities of
one or more series and any related coupons 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 pursuant to Section 301 with
respect to a series of Securities, the Company hereby designates as Places of
Payment for each series of Securities the office or agency of the
<PAGE> 81
73
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, notices and
demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a currency other than Dollars or (ii) may be payable in a
currency other than Dollars, or so long as it is required under any other
provision of 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 (or premium, if any) or interest, if any, on,
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (and premium, if any) and interest, if any, on, Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (or premium, if any) or interest, if any, on, any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent of any series of
Securities, other than the Trustee, to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of, or premium, if any, Interest if any, on the Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal, premium, if any, Interest if any; and
<PAGE> 82
74
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series
pursuant to Section 301, 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
(or premium, if any) or interest, if any, on, any Security of any series or the
payment of any related coupon and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall, unless
otherwise required by mandatory provisions of applicable escheat, or abandoned
or unclaimed property law, 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 or coupon shall thereafter, as an unsecured general creditor, look
only to the Company for payment of such principal, premium or interest, 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.
SECTION 1004. ADDITIONAL AMOUNTS. If the Securities of a
series provide for the payment of additional amounts, the Company will pay to
the Holder of any Security of such series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in this Section to the extent that,
in such context, additional amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any provisions hereof shall not
be construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set
<PAGE> 83
75
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 one or
more Holders of Securities of that series or any related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If the
Securities of a series provide for payment of additional amounts, and if any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or coupons and the Company will pay to the Trustee
or such Paying Agent the additional amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 1005. CORPORATE EXISTENCE. Subject to Article Eight,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
SECTION 1006. RESTRICTIONS ON SECURED DEBT. The Company
covenants and agrees for the benefit of each series of Securities, other than
any series established by or pursuant to a Board Resolution or in one or more
supplemental indentures hereto which specifically provides otherwise, that it
will not itself, and will not permit any Restricted Subsidiary to, incur, issue,
assume, or guarantee any loans, whether or not evidenced by negotiable
instruments or securities, or any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed (loans, and notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed being
hereinafter called "Debt"), secured after the date hereof by a pledge of, or
mortgage or lien on, any Principal Property of the Company or any Restricted
Subsidiary or any shares of Capital Stock of or Debt of any Restricted
Subsidiary (mortgages, pledges and liens being hereinafter called "Mortgage" or
"Mortgages"), without effectively providing that the Securities, other than
Securities of a series not entitled to the benefits of this covenant, shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate amount of all such secured Debt (plus
all Attributable Debt not otherwise permitted by the second paragraph of Section
1007) would not exceed 10% of Consolidated Net Assets; provided, however, that
this Section 1006 shall not apply to, and there shall be excluded from secured
Debt in any computation under this Section 1006, Debt secured by:
(1) Mortgages on property of, or on any shares of Capital
Stock of or Debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(2) Mortgages in favor of the Company or any Restricted
Subsidiary;
<PAGE> 84
76
(3) Mortgages in favor of any governmental body to secure
progress, advance or other payments pursuant to any contract or
provision of any statute, rule, regulation, decree, order or other
applicable law;
(4) Mortgages on property, shares of Capital Stock or Debt
existing at the time of acquisition thereof (including acquisition
through merger or consolidation) or to secure the payment of all or any
part of the purchase price thereof or the cost of construction,
substantial repair or alteration thereon or development or substantial
improvement thereto or to secure any Debt incurred prior to, at the
time of, or within 180 days after (A) the acquisition of such property,
shares of Capital Stock or Debt or (B) in the case of real property the
later of (x) the completion of construction, substantial repair or
alteration thereon or development or substantial improvement thereto or
(y) commencement of commercial operations on such property for the
purpose of financing all or any part of the purchase price thereof or
the cost of construction, substantial repair or alteration thereon or
development or substantial improvement thereto;
(5) Mechanics', materialmen's, carriers' or other like liens
arising in the ordinary course of business (including construction of
facilities) in respect of obligations which are not due or which are
being contested in good faith;
(6) Any Mortgage arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body
created or approved by law or governmental regulations, which is
required by law or governmental regulation as a condition to the
transaction of any business, or the exercise of any privilege,
franchise or license;
(7) Mortgages for taxes, assessments or governmental charges
or levies not yet delinquent, or Mortgages for taxes, assessments or
governmental charges or levies already delinquent but the validity of
which is being contested in good faith;
(8) Mortgages (included judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested
in good faith and, in the case of judgment liens, execution thereon is
stayed;
(9) Mortgages existing at the date of this Indenture; and
(10) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (9), inclusive;
provided, however, that such extension, renewal or replacement Mortgage
shall be limited to all or part of the same property, shares of Capital
Stock or Debt that secured the Mortgage extended, renewed or replaced
(plus improvements on such property).
<PAGE> 85
77
SECTION 1007. RESTRICTION ON SALES AND LEASEBACKS. The Company
covenants and agrees for the benefit of each series of Securities, other than
any series established pursuant to a Board Resolution or in one or more
supplemental indentures hereto which specifically provides otherwise, that it
will not itself, and will not permit any Restricted Subsidiary to enter into any
sale and leaseback transaction involving any Principal Property, unless after
giving effect thereto the aggregate amount of all Attributable Debt with respect
to all such transactions (plus all secured Debt not otherwise permitted by
clauses 1 through 10 of Section 1006) would not exceed 10% of Consolidated Net
Assets.
This restriction will not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if
(a) the lease is for a period, including renewal rights, not
in excess of three years,
(b) the sale or transfer of the Principal Property is made
within 180 days after its acquisition or within 180 days after the
later of (1) the completion of construction, substantial repair or
alteration thereon or development or substantial improvement thereto,
or (2) commencement of commercial operations thereon,
(c) the transaction is between the Company and a Restricted
Subsidiary, or between Restricted Subsidiaries,
(d) the Company or a Restricted Subsidiary would be entitled
to incur a Mortgage on such Principal Property pursuant to clauses 1
through 10 of Section 1006, or
(e) the Company or a Restricted Subsidiary, within 180 days
after the sale or transfer is completed, applies to the retirement of
Funded Debt of the Company or a Restricted Subsidiary ranking on a
parity with or senior to the Securities, or to the purchase of other
property which will constitute a Principal Property having a fair
market value at least equal to the fair market value of the Principal
Property leased, an amount equal to the greater of the net proceeds of
the sale of the Principal Property or the fair market value (as
determined by the Board of Directors) of the Principal Property leased
at the time of entering into such arrangement (as determined by the
Board of Directors).
SECTION 1008. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year ending
after the first date of an Officers' Certificate providing for Securities of any
series pursuant to Section 301, a brief certificate of its principal executive
officer, principal financial officer or principal accounting officer stating
whether, to such officer's knowledge, the Company is in compliance with all
covenants and conditions to be complied with by it under this Indenture with
respect to each
<PAGE> 86
78
Outstanding series of Securities. For purposes of this Section 1008, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1009. WAIVER OF CERTAIN COVENANTS. The Company may
with respect to any Outstanding series of the Securities omit in any particular
instance to comply with any covenant or condition set forth in Section 1006,
Section 1007 and, as specified pursuant to Section 301(15) for Securities of any
series, in any covenants added pursuant to Section 301(14) or 301(15) in
connection with such series, if, before or after the time for such compliance,
the Holders of a majority in aggregate principal amount of the series at the
time Outstanding shall, by Act of such Holders, waive such compliance in such
instance 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 covenant 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 such series, in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any series of 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,
not less than 30 days (or, if the Trustee is to give notice at the request of
the Company, 45 days) nor more than 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing 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 with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days and not less than 30 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, either pro rata, by lot or
by
<PAGE> 87
79
any other method as the Trustee shall deem fair and reasonable, and the amounts
to be redeemed may be equal to $1,000 or any integral multiple thereof.
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 107, 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 and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(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, 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, if any, to the Redemption Date payable as provided in
Section 1106 will become due and
<PAGE> 88
80
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,
(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 the fourth
paragraph of Section 305 or otherwise, the last date, as determined by
the Company, on which such exchanges may be made, and
(10) the CUSIP or CINS number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified
<PAGE> 89
81
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest, if any) 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 Securities shall
be paid by the Company at the Redemption Price, together with accrued interest,
if any, to the Redemption Date; provided, however, that installments of interest
on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest, and provided further that, unless otherwise specified as
contemplated in Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
So long as it is known to the Trustee that an Event of Default
is continuing hereunder, the Trustee shall not redeem any Securities of any
series pursuant to this Article (unless all outstanding Securities of such
series are to be redeemed) or mail or give any notice of redemption of
Securities except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such
<PAGE> 90
82
Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any monies theretofore or
thereafter received by the Trustee shall, during the continuance of such Event
of Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 513 or the Default cured on or before the sixtieth
day preceding the Redemption Date, such monies shall thereafter be applied in
accordance with the provisions of this Article Eleven.
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. However, if
less than all the Securities of any series with differing issue dates, interest
rates and stated maturities are to be redeemed, the Company in its sole
discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date.
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
<PAGE> 91
83
respect to the Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption) together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities; provided that such Securities so delivered or applied as a
credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 60 days, or such shorter period as may be acceptable to the Trustee,
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 in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
<PAGE> 92
84
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 the Repayment Price thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price 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. The Company shall notify the Trustee in writing at least 30 days prior to
any Repayment 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. To be repaid
at the option of the Holder, any Security so providing for such repayment, with
the "Option to Elect Repayment" form on the reverse of such Security duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
must be received by the Company 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 45 days nor later than 30 days prior to the Repayment Date. If less
than the entire Repayment Price of such Security is to be repaid in accordance
with the terms of such Security, the portion of the Repayment Price 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 such Security
surrendered that is not to be repaid, must be specified. Any Security providing
for repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME
DUE AND PAYABLE. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any
<PAGE> 93
85
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 Repayment Price of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of 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.
<PAGE> 94
86
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless otherwise provided for pursuant
to Section 301 (a) defeasance of the Securities of any series under Section 1402
and (b) covenant defeasance of the Securities of any series under Section 1403,
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
series of Outstanding Securities, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Securities of
such series 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 below in clauses (A) and (B) of this Section, and to
have satisfied all its other obligations with respect to such series and any
coupons appertaining thereto and this Indenture insofar as such series 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 series 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 series under Sections 304, 305, 306, 1002 and
1003 and with respect to the payment of additional amounts, if any, on such
series as contemplated by Section 1004, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article Fourteen. 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 Outstanding
series of Securities, the
<PAGE> 95
87
Company shall be released from its obligations under Sections 1006 and 1007,
and, if specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding series and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such series 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 1006 and 1007, 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 series 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 paragraph 501(c) (with respect to Sections 1006 and 1007
or such other covenant), 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 series of Securities 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 of cash (in such Currency 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 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 each such
case in an amount sufficient, in the opinion of a United States
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
<PAGE> 96
88
(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 Default or 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(e) and 501(f) 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 this
Indenture, there has been a change in the applicable United States
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding series of 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) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 608 or for purposes of the TIA with
respect to any securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940,
as amended.
(f) 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 series of Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for United States 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> 97
89
(g) 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.
(h) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds established pursuant to this Article Fourteen will not
be subject to the effect of any applicable United States bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally (for the limited purpose of the Opinion of Counsel referred
to in this paragraph, such opinion may contain an assumption that the
conclusions contained in a customary solvency letter by a nationally
recognized appraisal firm, dated as of the date of the deposit and
taking into account such deposit, are accurate as of such date,
provided that such solvency letter is also addressed and delivered to
the Trustee).
(i) 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(a) 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, 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 series of
Security pursuant to Section 301, if, after a deposit referred to in Section
1404(a) has been made, (a) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to Section 312(b) or
the terms of such series to receive payment in a Currency other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
series, or (b) a Conversion Event occurs as contemplated in Section 312(d) or
312(e) or by the terms of any Security in respect of which the deposit pursuant
to Section 1404(a) has been made, the indebtedness represented by such Security
and any coupons appertaining thereto shall be deemed
<PAGE> 98
90
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 series of
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 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 in effect on the
second Business Day prior to each payment date, except, with respect to a
Conversion Event, for such Currency 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(a) 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 Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A
meeting of Holders of Securities of a series of Securities which includes Bearer
Securities may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the Borough of Manhattan, The City of New York as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 107, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
<PAGE> 99
91
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
<PAGE> 100
92
Except as limited by the proviso in the first paragraph of
Section 902, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, except as
limited by the proviso in the first paragraph of Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage which is less than a
majority in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the
<PAGE> 101
93
manner specified in Section 105(c) or Section 105(d), as applicable, and the
appointment of any proxy shall be proved in the manner specified in Section
105(a) or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 105 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present pursuant to Section
1504 may be adjourned from time to time by Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at
the meeting, and the meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary
<PAGE> 102
94
of the meeting and one such copy shall be delivered to the Company and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
* * * * *
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.
<PAGE> 103
95
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective common or corporate seals to
be hereunto affixed and attested, all as of the day and year first above
written.
AVNET, INC.
By: /s/ Raymond Sadowski
------------------------------
Name: Raymond Sadowski
Title: Senior Vice President
[SEAL]
Attest:
/s/ David R. Birk
---------------------------------
Name: David R. Birk
Title: Secretary
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: /s/ Michael D. Pinzon
------------------------------
Name: Michael D. Pinzon
Title: Authorized Signatory
[SEAL]
Attest:
/s/ Sandra Whalen
---------------------------------
Name: Sandra Whalen
Title: Authorized Signatory
<PAGE> 104
EXHIBIT A
[FORM OF REGISTERED SECURITY]*
[Form of Face]
[If an Original Issue Discount Security, insert any legend required by
the Internal Revenue Code and the Regulations thereunder.]
AVNET, INC.
............................
No. [R-] ................ [U.S. $] ..............
AVNET, INC., a corporation duly organized and existing under the laws
of the State of New York (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ......................................
......................... or registered assigns the principal sum of ...........
........................................ [United States] Dollars on ............
........................ [If the Security is interest-bearing, insert-, and to
pay interest thereon from ..............., .... or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
[semi-annually in arrears on ................. and ................. in each
year] [annually in arrears on ................. in each year], commencing
.................., .... at the rate of ....% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert-, and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of ....% per annum on any overdue principal [and premium, if any] and
on any overdue installment of interest)]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ...............
....... [or ................] (whether or not a Business Date) [, as the case
may be,] next preceding such Interest Payment Date. Except as otherwise provided
in the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed
--------
* To be completed and supplemented to reflect the terms of any series of
Securities.
<PAGE> 105
A-2
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert-
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.] [Payment of
the principal of [(and premium, if any)] and [if applicable, insert- any such]
interest on this Security will be made at [the offices or agencies of the
Company maintained for that purpose in .......................................,
in such coin or currency [of the United States of America] as at the time of
payment is legal tender for payment of public and private debt]. [If applicable,
insert-; provided, however, that at the option of the Company payment of
interest may be made by [United States dollars] check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].]
[If Securities of the series are to be offered to United States Aliens
and, if applicable, insert- The Company will pay to the Holder of this Security
who is a United States Alien (as defined below) such additional amounts as may
be necessary in order that [If the Security is interest-bearing, insert- every
net payment of the principal of [(and premium, if any)] and interest on this
Security] [if the Security is not to bear interest prior to Maturity, insert-
(i) the net payment of principal of (and interest on overdue principal, if any,
on) this Security and (ii) the net proceeds from the sale or exchange of this
Security, including, in each case, amounts received in respect of original issue
discount], after deduction or withholding for or on account of any present or
future tax, assessment or other governmental charge imposed by the United States
(as defined below) or any political subdivision or taxing authority thereof or
therein upon or as a result of such payment [If the Security is not to bear
interest prior to Maturity, insert- or as a result of such sale or exchange],
will not be less than the amount provided for in this Security to be then due
and payable [If the Security is not to bear interest prior to Maturity, insert-
or, in the case of a sale or exchange, the amount of the net proceeds from the
sale or exchange before any such tax, assessment or other governmental charge);
provided, however,
<PAGE> 106
A-3
that the foregoing obligation to pay additional amounts will not apply to any
one or more of the following:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor, beneficiary,
member of, or possessor of a power over, or shareholder of such Holder, if such
Holder is an estate, a trust, a partnership or a corporation) and the United
States, including, without limitation, such Holder (or such fiduciary, settlor,
beneficiary, member, possessor or shareholder being or having been a citizen or
resident or treated as a resident thereof, or being or having been engaged in
trade or business or present therein, or having or having had a permanent
establishment therein, or (ii) such Holder's present or former status as a
personal holding company, a foreign personal holding company, a controlled
foreign corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [if the
Security is interest-bearing, insert- on interest received by a Person holding,
actually or constructively, 10% or more of the total combined voting power of
all classes of stock of the Company entitled to vote or on interest received by
a bank on an extension of credit made pursuant to a loan agreement entered into
in the ordinary course of its trade or business, within the meaning of section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code")] [if
the Security is not to bear interest prior to Maturity insert- by reason of such
Holder's past or present status as the actual or constructive owner of 10% or
more of the total combined voting power of all classes of stock of the Company
entitled to vote or on interest received by a bank on an extension of credit
made pursuant to a loan agreement entered into the ordinary course of its trade
or business, within the meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of this Security, if compliance is required by statute or by
regulation of the United States as a precondition to exemption from such tax,
assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of [if the Security is
interest-bearing,
<PAGE> 107
A-4
insert- principal of [(and premium, if any)] or interest on this Security] [If
the Security is not to bear interest prior to Maturity, insert- principal of (or
interest on overdue principal, if any, on) this Security or from payments from
the proceeds of a sale or exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this Security for
payment on a date more than 15 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever occurs later;
nor will additional amounts be paid with respect to any payment of [if the
Security is interest- bearing, insert- principal of [(and premium, if any)] or
interest on this Security] [if the Security is not to bear interest prior to
Maturity, insert- principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of this Security] to
any United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of this
Security. In the case of net proceeds from the sale or exchange of a Bearer
Security, additional amounts with respect to such net proceeds shall not (a)
exceed additional amounts that would have been payable if the Bearer Security
had been redeemed for its issue price plus accrued original issue discount at
the time of such sale or exchange or (b) be paid in respect of any sale or
exchange occurring after the date fixed for redemption of such Security. Except
as previously provided herein with respect to Bearer Securities, the Company
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein and may make such withholdings and
deductions on account of any such charge as may be required by applicable law or
regulation. The term "United States Alien" means any Person who, for United
States federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust or
a foreign partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust, and
the term "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 108
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:___________________
AVNET, INC.
By_______________________________
Attest:
_______________________________
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:_______________________________
Authorized Officer
<PAGE> 109
A-6
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ________________ (herein called the
"Indenture"), between the Company and Bank One Trust Company, N.A., as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities [If the Securities of the series are issuable as
Bearer Securities, insert- and any coupons appertaining thereto] and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to [U.S.] [$] ______________]. The Securities of this
series are issuable as [Bearer Securities] [, with interest coupons attached,]
in the denomination of [If Securities of the series are issuable as Bearer
Securities, insert- [U.S. $] __________, and] [only] Registered Securities,
without coupons, in denominations of [U.S. $]_____________, and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, [Bearer Securities and Registered] Securities of
this series are exchangeable for a like aggregate principal amount of
[Registered] Securities of this series and of like tenor of any authorized
denominations, as requested by the Holder surrendering the same, upon surrender
of the Security or Securities to be exchanged at [any office or agency described
below where Registered Securities of this series may be presented for
registration of transfer]. [Bearer Securities may not be issued in exchange for
Registered Securities.]
[If applicable, insert- The Securities of this series are subject to
redemption [(1)] [If applicable, insert- on __________ in any year commencing
with the year __________ and ending with the year __________ through operation
of the sinking fund for this series at a Redemption Price equal to [100% of the
principal amount] [or insert formula for determining the amount], [and] (2) [If
applicable, insert- at any time [on or after __________, 20__], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [or before
__________, ____% and if redeemed] during the 12-month period beginning
__________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
<PAGE> 110
A-7
and thereafter at a Redemption Price equal to ________% of the principal
amount,] [If applicable, insert- [and (____)] under the circumstances described
in the next [two] succeeding paragraph[s] at a Redemption Price equal to [100%
of the principle amount,] [or insert formula for determining the amount]] [If
the Security is interest-bearing, insert-, together in the case of any such
redemption [If applicable, insert- (whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date; provided,
however, that installments of interest on this Security whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holder of this
Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture].
[If applicable, insert- The Securities of this series are subject to
redemption (1) on __________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________, ____], as a whole or in part, at
the election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price for
Redemption Price for Redemption Otherwise
Redemption Through Than Through Operation
Year Operation of the Sinking Fund of the Sinking Fund
---- ----------------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to __________% of the principal
amount, [If applicable, insert- and (3) under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to [100% of the
principal amount] [or insert formula for determining the amount]] [If the
Security is interest-bearing, insert-, together in the case of any such
redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture].]
<PAGE> 111
A-8
[Partial redemption must be made in an amount not less than [U.S.
$1,000] principal amount of Securities.]
[Notwithstanding the foregoing, the Company may not, prior to ______,
redeem any Securities of this series as contemplated by clause [(2)] above as a
part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than _____% per annum.]
[If Securities of the series are to be offered to United States Aliens,
insert- The Securities may be redeemed, as a whole but not in part, at the
option of the Company, at a Redemption Price [equal to 100% of their principal
amount] [determined as set forth in the [preceding] paragraph] [If the Security
is interest-bearing, insert-, together with interest accrued to the date fixed
for redemption,] if (i), as a result of any amendment to, or change in, the laws
or regulations of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official interpretation or application of such laws or regulations, which
amendment or change ("Tax Law Change") is effective on or after __________,
____, the Company has or will become obligated to pay additional amounts (as
described in the face hereof] [If the Security is interest-bearing, insert- on
the next succeeding Interest Payment Date] [If the Security is not to bear
interest prior to Maturity, insert- at Maturity or upon the sale or exchange of
any Security]; provided that, at the time such notice is given, such obligation
to pay such additional amounts remains in effect, or (ii) in the written opinion
of independent counsel selected by the Company there is a substantial likelihood
that the Company has or will become obligated to pay such additional amounts as
a result of any action taken by any taxing authority or of any action brought in
a court of competent jurisdiction in the United States or any political
subdivision thereof or therein, including any of the actions described in (i)
above, whether or not such action has been taken or brought with respect to the
Company, or as a result of any officially proposed Tax Law Change, which action
or proposed change occurs after _______________].
[If the Securities of the series are issuable as Bearer Securities and
if applicable, insert- In addition, if the Company determines, based upon a
written opinion of independent counsel selected by the Company, that any payment
made outside the United States by the Company or any of its Paying Agents of the
full amount of principal, [(premium, if any)] or interest, if any, due with
respect to any Bearer Security or coupon would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a beneficial
owner of such Bearer Security or coupon who is a United States Alien (as defined
on the face hereof (other than such a requirement (a) which would not be
applicable to a payment
<PAGE> 112
A-9
made by the Company or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to any custodian, nominee or other agent of the
beneficial owner, or (b) which can be satisfied by the custodian, nominee or
other agent certifying that the beneficial owner is a United States Alien,
provided in each case referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial owner is not otherwise
subject to any such requirement), the Company at its election will either (x)
redeem the Securities, as a whole but not in part, at a Redemption Price [equal
to 100% of their principal amount] [determined as set forth in the [next
preceding] paragraph,] together with interest accrued to the date fixed for
redemption, or (y) if and so long as any such certification, identification or
other reporting requirement would be fully satisfied by payment of a backup
withholding tax or similar charge, pay to the Holders of Bearer Securities who
are United States Aliens certain additional amounts specified in the Bearer
Securities of this series. The Company will make such determination and election
and notify the Trustee thereof as soon as practicable, and the Trustee will
promptly give notice of such determination in the manner provided below (the
"Determination Notice"), in each case stating the effective date of such
certification, identification or other reporting requirement, whether the
Company will redeem the Securities or will pay to the Holders of Bearer
Securities who are United States Aliens the additional amounts specified in the
Bearer Securities of this series and (if applicable) the last day by which the
redemption of the Securities must take place. If the Company elects to redeem
the Securities, such redemption shall take place on such date, not later than
one year after publication of the Determination Notice, as the Company elects by
notice to the Trustee at least 60 days before such date, unless shorter notice
is acceptable to the Trustee. Notwithstanding the foregoing, the Company will
not so redeem the Securities if the Company, based upon an opinion of
independent counsel selected by the Company subsequently determines, not less
than 10 days prior to the date fixed for redemption, that subsequent payments
would not be subject to any such requirement, in which case the Company will
notify the Trustee, which will promptly give notice of that determination in the
manner provided below, and any earlier redemption notice will thereupon be
revoked and of no further effect. If the Company elects as provided in clause
(y) above to pay such additional amounts to the Holders of Bearer Securities who
are United States Aliens, and as long as the Company is obligated to pay such
additional amounts to such Holders, the Company may subsequently redeem the
Securities, at any time, as a whole but not in part, at a Redemption Price
[equal to 100% of their principal amount] [determined as set forth in the next
preceding paragraph,] together with interest accrued to the date fixed for
redemption, but without reduction for applicable United States withholding
taxes.]
[The sinking fund for this series provides for the redemption on
__________ in each year, beginning with the year _____ and ending with the year
_____ of [not less than] [U.S.] $__________ [("mandatory sinking fund") and not
more than [U.S. $__________] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited
<PAGE> 113
A-10
against subsequent [mandatory] sinking fund payments otherwise required to be
made in the inverse order in which they become due.]]
[Notice of redemption will be given by mail to Holders of [If the
Securities of the series are issuable as Bearer Securities, insert- Registered]
Securities, not more than 60 days nor less than 30 days prior to the date fixed
for redemption, all as provided in this Indenture.]
In the event of redemption of this Security in part only, a new [If the
Securities of the series are issuable as Bearer Securities, insert- Registered]
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, [the] [If an Original Issue Discount Security, insert-
an amount of] principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. [If an
Original Issue Discount Security, insert- Such amount shall be equal to-insert
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are issuable as Bearer Securities and
are interest-bearing, insert- and any related coupons] under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding (with each series voting as a separate class in
certain cases specified in the Indenture, or with all series voting as one
class, in certain other cases specified in the Indenture), on behalf of the
Holders of all Securities of such series [If the Securities of the series are
issuable as Bearer Securities [and are interest-bearing] insert- and any related
coupons], to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notification of such consent or waiver
is made upon this Security.
<PAGE> 114
A-11
As set forth in, and subject to the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium, if any)] and [any]
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provisions of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and [any] interest [(including additional amounts, as described on the face
hereof)] on this Security at the times, place[s] and rate, and in the coin or
currency, herein prescribed.
[Title to Bearer Securities shall pass by delivery.] As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
[this] [Registered] Security is registrable in the Security Register, upon
surrender of [this] [Registered] Security for registration of transfer at the
office or agency of the Company in [any place where the principal of [(and
premium, if any)] and [any] interest on such Security are payable], duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new [If the Securities of the series are issuable as Bearer Securities,
insert- Registered] Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
[If the Securities of the series are not issuable as Bearer Securities
insert- The Securities of this series are issuable only in registered form,
without coupons, in denominations of [$]__________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.]
<PAGE> 115
A-12
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Notwithstanding anything in the Indenture or in the terms of this
Security to the contrary, the exchange of this Security for a Registered
Security will be subject to satisfaction of the provisions of the United States
tax laws in effect at the time of the exchange. Neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be required to
exchange this Security for a Registered Security if (i) as a result thereof and
in the Company's judgment, the Company would incur adverse consequences under
then applicable United States Federal income tax laws and (ii) in the case of
the Trustee or any agent of the Company or the Trustee, the Company shall have
delivered to such Person an Officers' Certificate and an Opinion of Counsel as
to the matters set forth in clause (i) above.
The Indenture, [and] the Securities and [If the Securities of the
series are issuable as Bearer Securities, insert- any coupons appertaining
thereon] shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to the conflicts of laws provisions
thereof.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE> 116
EXHIBIT B
[FORM OF BEARER SECURITY
AND FORM OF RELATED COUPON]*
[Form of Face]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE [If an
Original Issue Discount Security, insert any legend required by the Internal
Revenue Code and the Regulations thereunder.]
AVNET, INC.
......................
No. B.................. [U.S. $................]
AVNET, INC., a corporation duly organized and existing under the laws
of the State of New York (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to bearer upon presentation and surrender
of this Security the principal sum of ...................... [United States
dollars] on .................... [if the Security is interest-bearing, insert-,
and to pay interest thereon, from the date hereof, [semi-annually in arrears on
..................... and .................. in each year] [annually in arrears
on .......... in each year], commencing ...................., ...............,
at the rate of .....% per annum, until the principal hereof is paid or made
available for payment [if applicable, insert-, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of .......%
per annum on any overdue principal and premium and on any overdue installment of
interest)].
[If the Security is not to bear interest prior to Maturity, insert- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity, and in such case the overdue principal of this Security shall bear
interest at the rate of . . . .% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate
--------
* To be completed and supplemented to reflect the terms of any series of
Securities.
<PAGE> 117
B-2
of .....% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.] Such payments [(including
premium, if any)] shall be made, subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided in the Indenture)
to rescind the designation of any such Paying Agent, at the [main] office of
.......... in .........., .......... in .........., .......... in ..........,
.......... in .......... and .......... in .........., or at such other offices
or agencies outside the United States (as defined below) as the Company may
designate, at the option of the Holder, by [United States dollar] check drawn on
a bank in The City of New York or by transfer of [United States dollars] to an
account maintained by the payee with a bank located outside the United States.
[If the Security is interest-bearing, insert- Interest on this Security due on
or before Maturity shall be payable only upon presentation and surrender at such
an office or agency of the interest coupons hereto attached as they severally
mature.] No payment of principal [, or] [premium] [or interest] on this Security
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 [If the Security is
denominated and payable in United States dollars, insert-; provided, however,
that payment of principal of [(and premium, if any)] and [any] interest on this
Security (including any additional amounts which may be payable as provided
below) shall be made at the office of the Company's Paying Agent in the United
States of America, if (but only if) payment in United States dollars of the full
amount of such principal[, premium] [, interest] or additional amounts, as the
case may be, at all offices or agencies outside United States maintained for the
purpose by the Company in accordance with the Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions, as
determined by the Company].
The Company will pay to the Holder of this Security [if the Security is
interest-bearing, insert- or any coupon appertaining hereto] who is a United
States Alien (as defined below) such additional amounts as may be necessary in
order that [If the Security is interest-bearing, insert- every net payment of
the principal of [(and premium, if any)] and interest on this Security] [If the
Security is not to bear interest prior to Maturity, insert- (i) the net payment
of principal of (and interest on overdue principal, if any, on) this Security
and (ii) the net proceeds from the sale or exchange of this Security, including,
in each case, amounts received in respect of original issue discount], after
deduction or withholding for or on account of any present or future tax,
assessment or other governmental charge imposed by the United States or any
political subdivision or taxing authority thereof or therein upon or as a result
of such payment [If the Security is not to bear interest prior to Maturity,
insert- or as a result of such sale or exchange], will not be less than the
amount provided for in this Security [If the Security is interest-bearing,
insert- or, in the case of a sale or exchange, the amount of the net proceeds
from the sale or exchange before any such tax, assessment or other governmental
charge]; provided, however,
<PAGE> 118
B-3
that the foregoing obligation to pay additional amounts will not apply to any
one or more of the following:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor, beneficiary,
member of, or possessor of a power over, or shareholder of such Holder, if such
Holder is an estate, a trust, a partnership or a corporation) and the United
States, including, without limitation, such Holder (or such fiduciary, settlor,
beneficiary, member, possessor or shareholder) being or having been a citizen or
resident or treated as a resident thereof, or being or having been engaged in
trade or business or present therein, or having or having had a permanent
establishment therein, or (ii) such Holder's present or former status as a
personal holding company, a foreign personal holding company, a controlled
foreign corporation for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the
Security is interest- bearing, insert- on interest received by a Person holding,
actually or constructively, 10% or more of the total combined voting power of
all classes of stock of the Company entitled to on interest received by a bank
on an extension of credit made pursuant to a loan agreement entered into in the
ordinary course of its trade or business, within the meaning of section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code")] [If
the Security is not to bear interest prior to Maturity, insert- by reason of
such Holder's past or present status as the actual or constructive owner of 10%
or more of the total combined voting power of all classes of stock of the
Company entitled to vote or on interest received by a bank on an extension of
credit made pursuant to a loan agreement entered into in the ordinary course of
its trade or business, within the meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of this Security [If the Security is interest-bearing, insert-
or any coupon appertaining hereto], if compliance is required by statute or by
regulation of the United States as a precondition to exemption from such tax,
assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or governmental charge;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of [If the Security is
interest-bearing,
<PAGE> 119
B-4
insert- principal of [(and premium, if any)] or interest on this Security.] [If
the Security is not to bear interest prior to Maturity, insert- principal of (or
interest on overdue principal, if any, on) this Security or from payments from
the proceeds of a sale or exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this Security [If
Security is interest-bearing, insert- or any coupon appertaining hereto] for
payment on a date more than 15 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever occurs later;
nor will additional amounts be paid with respect to any payment of [If the
Security is interest- bearing, insert- principal of [(and premium, if any)] or
interest on this Security] [If the Security is not to bear interest prior to
Maturity, insert principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of this Security] to
any United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the beneficial
owner would not have been entitled to the additional amounts had such
beneficiary, settlor, member or beneficial owner been the Holder of this
Security [If the Security is interest-bearing, insert- or any coupon
appertaining hereto]. In the case of net proceeds from the sale or exchange of a
Bearer Security, additional amounts with respect to such net proceeds shall not
(a) exceed additional amounts that would have been payable if the Bearer
Security had been redeemed for its issue price plus accrued original issue
discount at the time of such sale or exchange or (b) be paid in respect of any
sale or exchange occurring after the date fixed for redemption of such Security.
Except as previously provided herein with respect to Bearer Securities, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein and may make such
withholdings and deductions on account of any such charge as may be required by
applicable law or regulation. The term "United States Alien" means any Person
who, for United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which
is, for United States federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust, and the term "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
[Notwithstanding the foregoing, if and so long as a certification,
identification or other reporting requirement referred to in the [fourth]
[fifth] paragraph on the reverse
<PAGE> 120
B-5
hereof would be fully satisfied by payment of a backup withholding tax or
similar charge, the Company may elect, by so stating in the Determination Notice
(as defined in such paragraph), to have the provisions of this paragraph apply
in lieu of the provisions of such paragraph. In such event, the Company will pay
as additional amounts such amounts as may be necessary so that every net payment
made following the effective date of such requirements outside the United States
by the Company or any of its Paying Agents of principal [(and premiums, if any)]
[If the Security is interest-bearing, insert- or interest] due in respect of any
Bearer Security [If the Security is interest-bearing, insert - or any coupon] of
which the beneficial owner is a United States Alien (but without any requirement
that the nationality, residence or identity of such beneficial owner be
disclosed to the Company, any Paying Agent or any governmental authority), after
deduction or withholding for or on account of such backup withholding tax or
similar charge other than a backup withholding tax or similar charge which is
(i) the result of a certification, identification or other reporting requirement
described in the second parenthetical clause of such paragraph, or (ii) imposed
as a result of the fact that the Company or any of its Paying Agents has actual
knowledge that the beneficial owner of such Bearer Security [If the Security is
interest-bearing, insert - or any coupon] is within the category of Persons
described in clause (a) of the [third] paragraph of this Security, or (iii)
imposed as a result of presentation of such Bearer Security [If the Security is
interest-bearing, insert - or coupon] for payment more than 15 days after the
date on which such payment becomes due and payable or on which payment thereof
is duly provided for, whichever occurs later, will not be less than the amount
provided for in such Bearer Security [If the Security is interest- bearing,
insert - or coupon] to be then due and payable.]
Reference is made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or through an authenticating
agent, by manual signature of an authorized signatory, neither this Security,
nor any coupon appertaining hereto, shall be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
<PAGE> 121
B-6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal and coupons bearing the facsimile signature of
[its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated as of _______________, 2000
AVNET, INC.
By________________________________
Attest:
_____________________________
This is one of the Securities of the series designated herein referred
to in the within- mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:_______________________________
Authorized Officer
<PAGE> 122
B-7
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ________________ (herein called the
"Indenture"), between the Company and Bank One Trust Company, NA, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to [U.S. $]......]. The Securities of this series are
issuable as Bearer Securities, with interest coupons attached, in the
denomination of [U.S. $.........[, and as Registered Securities, without
coupons, in denominations of [U.S. $]......... and any integral multiple
thereof.] [As provided in the Indenture and subject to certain limitations
therein set forth, Bearer Securities and Registered Securities of this series
are exchangeable for a like aggregate principal amount of Registered Securities
of this series and of like tenor of any authorized denominations, as requested
by the Holder surrendering the same, upon surrender of the Security or
Securities to be exchanged, with all unmatured coupons and all matured coupons
in default thereto appertaining, at any office or agency described below where
Registered Securities of this series may be presented for registration of
transfer, provided, however, that Bearer Securities surrendered in exchange for
Registered Securities between a Record Date and the relevant Interest Payment
Date shall be surrendered without the coupon relating to such Interest Payment
Date. Bearer Securities may not be issued in exchange for Registered
Securities.]
[If applicable, insert - The Securities of this series are subject to
redemption [(1)] [If applicable, insert - on (1) .......... in any year
commencing with the year .......... and ending with the year .......... through
operation of the sinking fund for this series at a Redemption Price equal to
[100% of the principal amount] [or Insert formula for determining the amount],
and (2)] [If applicable, insert - at any time [on or after .........., .....],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [or before .........., .....%, and if redeemed] during the 12-month
period beginning . . . . . of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
<PAGE> 123
B-8
and thereafter at a Redemption Price equal to ....% of the principal amount,]
[and (.....)] (under the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to [100% of the principal amount] [or
insert formula for determining the amount] [If the Security is interest-bearing,
insert -, together in the case of any such redemption [If applicable, insert -
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that interest installments
on this Security whose Stated Maturity is on or prior to such Redemption Date
will be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States, except as
herein provided otherwise)].]
[If applicable, insert - The Securities of this Series are subject to
redemption (1) on ......... in any year commencing with the year .... and ending
with the year .......... through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after .....,.....], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning .......... of the years indicated.
<TABLE>
<CAPTION>
Redemption Price for
Redemption Price for Redemption Otherwise
Redemption Through Than Through Operation
Year Operation of the Sinking Fund of the Sinking Fund
---- ----------------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ...% of the principal amount, and
(3) under the circumstances described in the next [two] succeeding paragraph[s]
at a Redemption Price equal to 100% of the principal amount [or insert formula
for determining the amount] [If the Security is interest-bearing, insert -
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that interest installments on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable only upon
presentation and surrender of coupons for such interest (at an office or agency
located outside the United States, except as herein provided otherwise].]
[Partial redemption must be in an amount not less than [U.S. $5,000]
principal amount of Securities.] [Notwithstanding the foregoing, the Company may
not, prior to .........., redeem any
<PAGE> 124
B-9
Securities of this series as contemplated by clause [(2)] above as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ...% per annum.]
[The Securities may be redeemed, as a whole but not in part, at the
option of the Company, at a Redemption Price [equal to 100% of their principal
amount] [determined as set forth in the [preceding] paragraph] [If the Security
is interest-bearing, insert -, together with interest accrued to the date fixed
for redemption,] if (i), as a result of any amendment to, or change in, the laws
or regulations of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official interpretation or application of such laws or regulations, which
amendment or change ("Tax Law Change") is effective on or after ..........,
...., the Company has or will become obligated to pay additional amounts (as
described on the face hereof) [If the Security is interest-bearing, insert - on
the next succeeding Interest Payment Date] [If the Security is not to bear
interest prior to Maturity, insert - at Maturity or upon the sale or exchange of
any Security] at the time such notice is given, such obligation to pay such
additional amounts remains in effect or (ii) in the written opinion of
independent counsel selected by the Company there is a substantial likelihood
that the Company has or will become obligated to pay such additional amounts as
a result of any action taken by any taxing authority or of any action brought in
a court of competent jurisdiction in the United States or any political
subdivision thereof or therein, including any of the actions described in (i)
above, whether or not such action has been taken or brought with respect to the
Company, or as a result of any officially proposed Tax Law Change, which action
or proposed change occurs after ............
[If applicable, insert - In addition, if the Company determines, based
upon a written opinion of independent counsel selected by the Company, that any
payment made outside the United States by the Company or any of its Paying
Agents of the full amount of principal [(, premium, if any)] or interest due
with respect to any Bearer Security or coupon would, under any present or future
laws or regulations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a beneficial
owner of such Bearer Security or coupon who is a United States Alien (as defined
on the face hereof) (other than such a requirement (a) which would not be
applicable to a payment made by the Company or any one of its Paying Agents (i)
directly to the beneficial owner, or (ii) to any custodian, nominee or other
agent of the beneficial owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying that the beneficial owner is a United States
Alien, provided in each case referred to in clauses (a)(ii) and (b) that payment
by such custodian, nominee or other agent of such beneficial owner is not
otherwise subject to any such requirement), the Company at its election will
either (x) redeem the
<PAGE> 125
B-10
Securities, as a whole but not in part, at a Redemption Price [equal to 100% of
their principal amount,] [determined as set forth in the [next preceding]
paragraph,] together with interest accrued to the date fixed for redemption, or
(y) if and so long as the conditions of the [third] paragraph on the face of
this Security are satisfied, pay the additional amounts specified in such
paragraph. The Company will make such determination and election and notify the
Trustee thereof as soon as practicable, and the Trustee will promptly give
notice of such determination in the manner provided below (the "Determination
Notice"), in each case stating the effective date of such certification,
identification or other reporting requirement, whether the Company will redeem
the Securities or will pay the additional amounts specified in such paragraph
and (if applicable) the last day by which the redemption of the Securities must
take place. If the Company elects to redeem the Securities, such redemption
shall take place on such date, not later than one year after publication of the
Determination Notice, as the Company elects by notice to the Trustee at least 60
days before such date, unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so redeem the Securities if
the Company, based upon an opinion of independent counsel selected by the
Company, subsequently deter mines, not less than 10 days prior to the date fixed
for redemption, that subsequent payments would not be subject to any such
requirement, in which case the Company will notify the Trustee, which will
promptly give notice of that determination in the manner provided below, and any
earlier redemption notice will thereupon be revoked and of no further effect. If
the Company elects as provided in clause (y) above to pay such additional
amounts, the Company may subsequently redeem the Securities, at any time, as a
whole or in part, at a Redemption Price [equal to 100% of their principal
amount] [determined as set forth in the next preceding paragraph,] together with
interest accrued to the date fixed for redemption, but without reduction for
applicable United States withholding taxes.]
[If applicable, insert - In addition, if the Company determines, based
upon a written opinion of independent counsel selected by the Company, that any
payment made outside the United States by the Company or any of its Paying
Agents of the full amount due with respect to any Bearer Security would, under
any present or future laws or regulations of the United States, be subject to
any certification, identification or other reporting requirement of any kind,
the effect of which requirement is the disclosure to the Company, any Paying
Agent or any govern mental authority of the nationality, residence or identity
of a beneficial owner of such Bearer Security who is a United States Alien (as
defined on the face hereof) (other than such a requirement (a) which would not
be applicable to a payment made by the Company or any one of its Paying Agents
(i) directly to the beneficial owner or (ii) to any custodian, nominee or other
agent of the beneficial owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement), the Company at its
election will either (x) permit any Holder of a Bearer Security to present such
Bearer Security for
<PAGE> 126
B-11
redemption within 90 days of notice of such redemption, at a Redemption Price
determined as set forth in the next preceding paragraph, or (y) if and so long
as the conditions of the [fifth] paragraph on the face of this Security are
satisfied, pay the additional amounts specified in such paragraph. The Company
will make such determination and election and notify the Trustee thereof as soon
as practicable, and the Trustee will promptly give notice of such determination
in the manner provided below (the "Determination Notice"), in each case stating
the effective date of such certification, identification or other reporting
requirement, whether the Company has elected to permit redemption of the Bearer
Securities or to pay the additional amounts specified in such paragraph and (if
applicable) the last day by which the Company may publish any notice of
redemption. If the Company elects to permit redemption of the Bearer Securities,
notice of the redemption will be given not more than 268 days following the
Determination Notice and will specify the date fixed for redemption. The Bearer
Securities will be redeemed on the day 97 days after notice of the redemption
has been given. Notwithstanding the foregoing, the Company will not permit
redemption of the Bearer Securities if the Company, based upon an opinion of
independent counsel, subsequently determines, not less than 10 days prior to the
date fixed for redemption, that no payment would be subject to any such
requirement, in which case the Company will promptly notify the Trustee, which
will promptly give notice of that determination in the manner described below,
and any earlier redemption notice will thereupon be revoked and of no further
effect.]
[The sinking fund for this series provides for the redemption on
................. in each year, beginning with the year ........ and ending with
the year ........, of [not less than] [U.S.] $......... [("mandatory sinking
fund") and not more than [U.S. $.........]] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made -- in the inverse order in which they become due.]]
[Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and, if the Securities of this series are then
listed on [The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited] [the Luxembourg Stock Exchange] [or] any [other]
stock exchange located outside the United States and such stock exchange shall
so require, in [London] [Luxembourg] [or] in any [other] required city outside
the United States, or, if not practicable, elsewhere in Europe, [and by mail to
Holders of Registered Securities] not less than 30 nor more than 60 days prior
to the date fixed for redemption, all as provided in the Indenture.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, [the] [If an Original Issue Discount Security, insert -
an amount of] principal
<PAGE> 127
B-12
of the Securities of the series may be declared due and payable in the manner
and with the effect provided in the Indenture [the] [If an Original Issue
Discount Security, insert - such amount shall be equal to - insert formula for
determining the amount. Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of the payment
of the principal of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are interest-bearing, insert - and any
related coupons] under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding (with
each series voting as a separate class in certain cases specified in the
Indenture, or with all series voting as one class, in certain other cases
specified in the Indenture), on behalf of the Holders of all Securities of such
series [If the Securities of the series are interest-bearing, insert - and any
related coupons], to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and any coupon appertaining hereto and of any Security issued in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series [If the Security is interest-bearing,
insert - or any related coupon] will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given written notice to the Trustee of a continuing Event
of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof [If the
Security in interest-bearing, insert - or any related coupon] for the
enforcement of payment for the principal of [(and premium, if any)] or [any]
interest on this Security [If the Security is interest-bearing, insert - or
payment of such coupon] on or after the respective due dates expressed herein
[If the Security is interest-bearing, insert -
<PAGE> 128
B-13
or payment of such coupon] on or after the respective due dates expressed herein
[If the Security is interest-bearing, insert - or in such coupon].
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and [any] interest [(including additional amounts, as described on the face
hereof)] on this Security at the times, place[s] and rate, and in the coin or
currency, herein prescribed.
Title to [Bearer] Securities and coupons shall pass by delivery. [As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of Registered Securities is registrable in the Security Register,
upon surrender of a Registered Security for registration of transfer at the
[Corporate Trust Office of the Trustee or such other] office or agency of the
Company in any place where the principal of (premium, if any) and interest, if
any, on such Security are payable, duly endorsed by, or 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, and thereupon one or more new [Registered] Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.]
[No service charge shall be made for any such [registration of transfer
or] exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.]
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of a Bearer Security or any series [If the Securities of
the series are interest-bearing, insert - and any coupon appertaining thereto]
[, and 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 Security is registered,] as the owner
thereof for all purposes, whether or not such Security [If the Securities of the
series are interest-bearing, insert - or such coupon] is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Notwithstanding anything in the Indenture or in the terms of this
Security to the contrary, the exchange of this Security for a Registered
Security will be subject to satisfaction of the provisions of the United States
tax laws in effect at the time of the exchange. Neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be required to
exchange this Security for a Registered Security if (i) as a result thereof and
in the Company's judgment, the Company would incur adverse consequences under
then applicable United States Federal income tax laws and (ii) in the case of
the Trustee or any agent of the Company or the
<PAGE> 129
B-14
Trustee, the Company shall have delivered to such Person an Officers'
Certificate and an Opinion of Counsel as to the matters set forth in clause (i)
above.
The Indenture, the Securities and any coupons appertaining thereto
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to the conflicts of laws provisions thereof. All
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
<PAGE> 130
B-15
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
[R-]...............
AVNET, INC. [U.S. $]...........
Due................
..............................
Unless the Security to which this coupon appertains shall have been
called for previous redemption and payment thereof duly provided for, on the
date set forth hereon, AVNET, INC. (herein called the "Company") will pay to
bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
[at the initial Paying Agents set out on the reverse hereof or at such other
offices or agencies (which, except as otherwise provided in the Security to
which this coupon appertains, shall be located outside the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction (the "United
States")) as the Company may designate from time to time,] at the option of the
Holder, by [United States dollar check] drawn on a bank in the city of New York
or by transfer of [United States dollars] to an account maintained by the payee
with a bank located outside the United States, being [one year's] interest then
payable on said Security.
AVNET, INC.
By
_____________________________________
<PAGE> 131
B-16
[Reverse of Coupon]*
.................................
.................................
.................................
.................................
.................................
--------------------
* Insert names and addresses of Initial Paying Agents located outside the United
States.
<PAGE> 132
EXHIBIT C
FORMS OF CERTIFICATION
C-1-1
EXHIBIT C-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE A 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
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 foreign branches of 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 Avnet, 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> 133
C-1-2
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 in writing, by tested telex or by
electronic transmission 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: ____________________, 2000
[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 Signatory)
Name:
Title:
<PAGE> 134
C-2-1
EXHIBIT C-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM 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 foreign
branches of 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 Avnet, Inc. or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, to the further effect, that financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
<PAGE> 135
C-2-2
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: ____________________, 2000
[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
[Clearstream Banking, S.A.]
By____________________________________
