AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 1995
REGISTRATION NO.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
SYSCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-1648137
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(713) 584-1390
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THOMAS P. KURZ
GENERAL COUNSEL
SYSCO CORPORATION
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(713) 584-1390
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
JAMES E. DORSEY CARLOS A. FIERRO
ARNALL GOLDEN & GREGORY BAKER & BOTTS, L.L.P.
2800 ONE ATLANTIC CENTER 2001 ROSS AVENUE
1201 WEST PEACHTREE STREET DALLAS, TEXAS 75201-2980
ATLANTA, GEORGIA 30309-3450 (214) 953-6818
(404) 873-8608
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC. From
time to time after the
effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED* PER UNIT OFFERING PRICE FEE
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.............. $500,000,000 100% $500,000,000 $172,414
</TABLE>
* Such amount in U.S. dollars or the equivalent thereof in a foreign currency
as shall result in an aggregate initial offering price of Debt Securities of
$500,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
- -------------------------------------------------------------------------------
| INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A |
| REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED |
| WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOR |
| BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE |
| REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT |
| CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR |
| SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH |
| OFFER, SOLICITATION OR SALE WOULD BE UNALWFUL PRIOR TO REGISTRATION OR |
| QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. |
- -------------------------------------------------------------------------------
SUBJECT TO COMPLETION DATED JUNE 6, 1995
PROSPECTUS
$500,000,000
SYSCO CORPORATION
DEBT SECURITIES
------------
Sysco Corporation ('SYSCO' or the 'Company') may offer and issue from time
to time in one or more series debt securities (the 'Debt Securities') with an
aggregate initial offering price not to exceed $500,000,000 (or the equivalent
in foreign currency or units based on or relating to currencies, including
European Currency Units). The Company will offer Debt Securities to the public
on terms determined by market conditions. Debt Securities may be issuable in
registered form without coupons or in bearer form with or without coupons
attached. Debt Securities may be sold for, and principal of and any premium or
interest on Debt Securities may be payable in, U.S. dollars, foreign currency
or currency units -- in each case, as the Company specifically designates.
The applicable Prospectus Supplement will set forth with respect to the
Debt Securities being offered thereby the ranking as senior or subordinated
Debt Securities, the specific designation, aggregate principal amount,
purchase price, maturity, interest rate (or manner of calculation thereof) and
time of payment of interest (if any), redemption provisions (if any), listing
(if any) on a securities exchange and any other specific terms of such Debt
Securities and the name of and compensation to each dealer, underwriter or
agent (if any) involved in the sale of such Debt Securities. The managing
underwriters with respect to each series sold to or through underwriters will
be named in the applicable Prospectus Supplement.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------
Debt Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the applicable Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an
agent -- in each case, less other expenses attributable to issuance and
distribution. The Company may also sell Debt Securities directly to investors
on its own behalf. In the case of sales made directly by the Company, no
commission will be payable. See 'Plan of Distribution' for possible
indemnification arrangements for dealers, underwriters and agents.
-------------------
The date of this Prospectus is June , 1995
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY DEBT
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
-------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the 'Commission'). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450
Fifth Street, N.W, Washington, D.C. 20549 or at its Regional Offices located
at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 13th Floor, 7 World Trade Center, New York, New York 10048,
and copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such material can also be inspected at the office of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, on which
exchange certain of the Company's securities are listed.
The Prospectus constitutes a part of a Registration Statement on Form S-3
(the 'Registration Statement') filed by the Company with the Commission under
the Securities Act of 1933, as amended (the 'Securities Act'). This Prospectus
omits certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and related exhibits for further
information with respect to the Company and the Debt Securities. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
-------------------
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended July 2, 1994
(including only those portions of the Company's proxy statement required to be
incorporated by reference therein), its Quarterly Report on Form 10-Q for the
quarter ended October 1, 1994, its Quarterly Report on Form 10-Q for the
quarter ended December 31, 1994 and its Quarterly Report on Form 10-Q for the
quarter ended April 1, 1995 have been filed by the Company with the Commission
and are incorporated herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of any series of Debt Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such
2
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits unless specifically
incorporated by reference into the documents that this Prospectus
incorporates) may be obtained by persons to whom this Prospectus is delivered
without charge upon written request to La Dee G. Riker, Vice President and
Secretary, Sysco Corporation, 1390 Enclave Parkway, Houston, Texas, 77077-2099
(telephone number (713) 584-1390).
-------------------
IN CONNECTION WITH AN OFFERING OF DEBT SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF THE DEBT SECURITIES OFFERED HEREBY OR OTHER SECURITIES OF THE
COMPANY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR IN
THE OVER-THE-COUNTER MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
3
SYSCO CORPORATION
GENERAL
Sysco Corporation (together with its subsidiaries and divisions
hereinafter referred to as 'SYSCO' or the 'Company') is the largest U.S.
distributor of food and related products to the foodservice or
'away-from-home-eating' industry. The Company provides its products and
services to approximately 245,000 restaurants, hotels, schools, hospitals,
retirement homes and other institutions throughout the continental United
States, including the 150 largest metropolitan areas, as well as the Pacific
coast region of Canada. Since the Company's formation in 1969, annual sales
have grown from approximately $115 million to nearly $11 billion in fiscal
1994. Taking advantage of innovations in food technology, improved packaging
and advanced distribution techniques, SYSCO is committed to providing its
customers with timely delivery of quality products at reasonable prices.
The Company, a Delaware corporation, has its principal executive offices
at 1390 Enclave Parkway, Houston, Texas 77077-2099 (telephone number (713)
584-1390).
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for the 1990, 1991, 1992,
1993 and 1994 fiscal years and for the 39-week period ended April 1, 1995 were
4.6x, 5.7x, 7.2x, 9.2x, 10.8x and 10.5x, respectively. For the purpose of
calculating this ratio, earnings consist of earnings before income taxes and
fixed charges. Fixed charges consist of interest expense and capitalized
interest.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include additions to working capital, capital
expenditures, acquisitions, stock repurchases and repayment of indebtedness.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or subordinated debt of
the Company and will be issued, in the case of senior debt, under a Senior
Debt Indenture (the 'Senior Debt Indenture'), as it may be amended and
supplemented from time to time, between the Company and First Union National
Bank of North Carolina, as Trustee, and, in the case of subordinated debt,
under a Subordinated Debt Indenture (the 'Subordinated Debt Indenture'), as it
may be amended and supplemented from time to time, between the Company and the
trustee to be named in the Prospectus Supplements relating to subordinated
debt. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an 'Indenture' and
collectively as the 'Indentures.' First Union National Bank of North Carolina
and the trustee to be named in the Prospectus Supplements relating to
subordinated debt are hereinafter referred to individually as a 'Trustee' and
collectively as the 'Trustees.' The Indentures are included as exhibits to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Indentures and the Debt Securities do
not purport to be complete and such summaries are subject to the detailed
provisions of the applicable Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain terms
used herein, and for other information regarding the Debt Securities.
Numerical references in parentheses below are to sections in the applicable
Indenture. Wherever particular sections or defined terms of the applicable
Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. The Indentures are substantially
identical, except for the provisions relating to subordination and certain
covenants. See 'Senior Debt' and 'Subordinated Debt.'
4
GENERAL
The Indentures do not limit the amount of additional indebtedness the
Company or any of its subsidiaries may incur. The Debt Securities will be
unsecured senior or subordinated obligations of the Company.
The Indentures provide that Debt Securities may be issued from time to
time in one or more series.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities of any series (to the extent
such terms are applicable): (i) the classification as senior or subordinated
Debt Securities, the specific designation, aggregate principal amount and
purchase price; (ii) the currency or units based on or relating to currencies
in which such Debt Securities are denominated and/or in which principal,
premium, if any, and/or interest, if any, will or may be payable; (iii) the
date or dates of maturity; (iv) any redemption, repayment or sinking fund
provisions; (v) the interest rate or rates, if any, and the dates on which any
such interest will be payable (or the method by which such rate or rates or
dates will be determined); (vi) the method by which amounts payable in respect
of principal, premium, if any, or interest, if any, on such Debt Securities
may be calculated, and any currencies, commodities or indices, or value, rate
or price, relevant to such calculation; (vii) the place or places where the
principal of, premium, if any, and interest, if any, on such Debt Securities
will be payable; (viii) whether such Debt Securities will be issuable in
registered form, without coupons, or bearer form, with or without coupons
('Bearer Securities') or both and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Securities; (ix) whether such Debt
Securities are to be issued in whole or in part in the form of one or more
temporary or permanent global Debt Securities and if so, the identity of the
depositary, if any, for such global Debt Securities; (x) any applicable United
States federal income tax consequences, including whether and under what
circumstances the Company will pay additional amounts on such Debt Securities
held by a person who is not a U.S. person (as defined in the Prospectus
Supplement) in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Company will have the option to redeem
such Debt Securities rather than pay such additional amounts; (xi) the terms
and conditions upon which and the manner in which such Debt Securities may be
defeased or discharged if different from the defeasance provisions described
below; and (xii) any other specific terms of such Debt Securities, including
any additional or different events of default or covenants provided for with
respect to such Debt Securities, and any terms which may be required by or
advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
applicable Indenture. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Bearer
Securities and the coupons, if any, appertaining thereto will be transferable
by delivery.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes are described in the
relevant Prospectus Supplement.
Debt Securities may be issued from time to time with payment terms which
are calculated by reference to the value, rate or price of one or more
currencies, commodities, indices or other factors. Holders of such Debt
Securities may receive a principal amount (including premium, if any) on any
principal payment date, or a payment of interest on any interest payment date,
that is greater than or less than the amount of principal (including premium,
if any) or interest otherwise payable on such
5
dates, depending upon the value, rate or price on such dates of the applicable
currency, commodity, index or other factor. Information as to the methods for
determining the amount of principal, premium, if any, or interest payable on
any date, the currencies, commodities, indices or other factors to which the
amount payable on such date is linked and certain additional tax
considerations will be set forth in the applicable Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement, the Debt
Securities will not contain any provisions which may afford holders of the
Debt Securities protection in the event of a change in control of the Company
or in the event of a highly leveraged transaction (whether or not such
transaction results in a change in control of the Company).
GLOBAL SECURITIES
REGISTERED GLOBAL SECURITIES. The registered Debt Securities of a series
may be issued in the form of one or more fully registered global Securities (a
'Registered Global Security') that will be deposited with (and registered in
the name of) a depositary (a 'Depositary') identified in the Prospectus
Supplement relating to such series or a nominee of the Depositary. Unless and
until it is exchanged in whole for Debt Securities in definitive registered
form, a Registered Global Security may not be transferred except as a whole by
the Depositary for such Registered Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ('participants') or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by or through such participants.
The accounts to be credited initially shall be designated by any dealers,
underwriters or agents participating in the distribution of such Debt
Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Registered
Global Security will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states and countries other than the
United States may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under such Indenture. Accordingly,
each person owning a beneficial interest in a Registered Global Security must
rely on the procedures of the Depositary for such Registered Global Security
and, if such person is not a participant, on the procedures of the
6
participant through which such person owns its interest, to exercise any
rights of a holder under such Indenture. The Company understands that under
existing industry practices, if the Company requests any action of holders or
if an owner of a beneficial interest in a Registered Global Security desires
to give or take any action which a holder is entitled to give or take under
the Indenture, the Depositary for such Registered Global Security generally
either (i) authorizes the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such
action, or (ii) otherwise acts upon the instructions of beneficial owners
holding through them.
Payments of principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the Trustee or any other agent of the Company
or of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered
Global Security as shown on the records of such Depositary. The Company also
expects that payments by participants to owners of beneficial interests in
such Registered Global Security held through such participants will be the
responsibility of such participants and will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers or registered in 'street name.'
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
(because it is no longer a clearing agency registered under the Exchange Act),
and a successor Depositary registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
such Debt Securities in definitive form in exchange for such Registered Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by
one or more Registered Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of the
Registered Global Security or Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Depositary
shall instruct the applicable Trustee. It is expected that such instructions
will be based upon directions received by the Depositary from participants
with respect to ownership of beneficial interests in such Registered Global
Security.
BEARER GLOBAL SECURITIES. The Debt Securities of a series may also be
issued in the form of one or more bearer global Debt Securities (a 'Bearer
Global Security') that will be deposited with a common depositary for Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-clear System and Centrale de Livraison de Valeurs Mobilieres S.A., or
with a nominee for such depositary identified in the Prospectus Supplement
relating to such series. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to any portion of a
series of Debt Securities to be represented by a Bearer Global Security will
be described in the Prospectus Supplement relating to such series.
SENIOR DEBT
The Debt Securities (and, in the case of Bearer Securities, any coupons
appertaining thereto) issued under the Senior Debt Indenture (the 'Senior Debt
Securities') will rank PARI PASSU with all
7
other unsecured and unsubordinated debt of the Company and senior to the
Subordinated Debt Securities (as hereinafter defined).
LIMITATIONS ON LIENS. The Company covenants in the Senior Debt Indenture
that it will not, and will not permit any Subsidiary to, issue, incur, create,
assume or guarantee any debt for borrowed money (including all obligations
evidenced by bonds, debentures, notes or similar instruments) secured by a
mortgage, security interest, pledge, lien, charge or other encumbrance
('mortgage') upon any Principal Property or upon any shares of stock or
indebtedness of any Subsidiary that owns or leases a Principal Property
(whether such Principal Property, shares or indebtedness are now existing or
owed or hereafter created or acquired) without in any such case effectively
providing concurrently with the issuance, incurrence, creation, assumption or
guaranty of any such secured debt, or the grant of such mortgage, that the
Senior Debt Securities (together with, if the Company shall so determine, any
other indebtedness of or guarantee by the Company or such Subsidiary ranking
equally with the Senior Debt Securities) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured debt. The
foregoing restriction, however, will not apply to each of the following: (a)
mortgages on property, shares of stock or indebtedness or other assets of any
corporation existing at the time such corporation becomes a Subsidiary,
PROVIDED that such mortgages or liens are not incurred in anticipation of such
corporation's becoming a Subsidiary; (b) mortgages on property, shares of
stock or indebtedness or other assets existing at the time of acquisition
thereof by the Company or a Subsidiary or mortgages thereon to secure the
payment of all or any part of the purchase price thereof, or mortgages on
property, shares of stock or indebtedness or other assets to secure any debt
incurred prior to, at the time of, or within 180 days after, the latest of the
acquisition thereof or, in the case of property, the completion of
construction, the completion of improvements or the commencement of
substantial commercial operation of such property for the purpose of financing
all or any part of the purchase price thereof, such construction or the making
of such improvements; (c) mortgages to secure indebtedness owing to the
Company or to a Subsidiary; (d) mortgages existing at the date of the initial
issuance of any Senior Debt Securities then outstanding; (e) mortgages on
property of a person existing at the time such person is merged into or
consolidated with the Company or a Subsidiary or at the time of a sale, lease
or other disposition of the properties of a person as an entirety or
substantially as an entirety to the Company or a Subsidiary, PROVIDED that
such mortgage was not incurred in anticipation of such merger or consolidation
or sale, lease or other disposition; (f) mortgages in favor of the United
States of America or any state, territory or possession thereof (or the
District of Columbia), or any department, agency, instrumentality or political
subdivision of the United States of America or any state, territory or
possession thereof (or the District of Columbia), to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property subject
to such mortgages; or (g) extensions, renewals or replacements of any mortgage
referred to in the foregoing clauses (a), (b), (d), (e) or (f); PROVIDED,
HOWEVER, that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness so secured at the time of such
extension, renewal or replacement. Any mortgages permitted by any of the
foregoing clauses (a) through (g) shall not extend to or cover any other
Principal Property of the Company or any Subsidiary or any shares of stock or
indebtedness of any such Subsidiary, subject to the foregoing limitations,
other than the property, including improvements thereto, stock or indebtedness
specified in such clauses. (Senior Debt Indenture Section 3.7)
Notwithstanding the restrictions in the preceding paragraph, the Company
or any Subsidiary may issue, incur, create, assume or guarantee debt secured
by a mortgage which would otherwise be subject to such restrictions, without
equally and ratably securing the Senior Debt Securities, PROVIDED that after
giving effect thereto, the aggregate amount of all debt so secured by
mortgages (not including mortgages permitted under clauses (a) through (g)
above) does not exceed 20% of the Consolidated Net Tangible Assets of the
Company. (Senior Debt Indenture Section 3.7)
8
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The Company covenants in
the Senior Debt Indenture that it will not, nor will it permit any Subsidiary
to, enter into any Sale and Lease-Back Transaction with respect to any
Principal Property, other than any such transaction involving a lease for a
term of not more than three years or any such transaction between the Company
and a Subsidiary or between Subsidiaries, unless: (a) the Company or such
Subsidiary would be entitled to incur indebtedness secured by a mortgage on
the Principal Property involved in such transaction at least equal in amount
to the Attributable Debt with respect to such Sale and Lease-Back Transaction,
without equally and ratably securing the Senior Debt Securities, pursuant to
the limitation on liens described above; or (b) the proceeds of such
transaction are at least equal to the fair market value of the affected
Principal Property (as determined in good faith by the Board of Directors of
the Company) and the Company applies an amount equal to the greater of the net
proceeds of such sale or the Attributable Debt with respect to such Sale and
Lease-Back Transaction within 180 days of such sale to either (or a
combination of) (i) the retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of
debt for borrowed money of the Company or a Subsidiary (other than debt that
is subordinated to the Senior Debt Securities or debt to the Company or a
Subsidiary) that matures more than 12 months after its creation or (ii) the
purchase, construction or development of other comparable property. (Senior
Debt Indenture Section 3.8)
'Attributable Debt' with regard to a Sale and Lease-Back Transaction with
respect to any property is defined in the Senior Debt Indenture to mean, at
the time of determination, the lesser of: (a) the fair market value of such
property (as determined in good faith by the Board of Directors of the
Company); or (b) the present value of the total net amount of rent required to
be paid under such lease during the remaining term thereof (including any
period for which such lease has been extended), discounted at the rate of
interest set forth or implicit in the terms of such lease (or, if not
practicable to determine such rate, the Composite Rate) compounded
semi-annually. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net
amount determined assuming termination upon the first date such lease may be
terminated (in which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated) or the
net amount determined assuming no such termination.
'Composite Rate' is defined in the Senior Debt Indenture to mean, at any
time, the rate of interest, per annum, compounded semi-annually, equal to the
sum of the rates of interest borne by each of the Senior Debt Securities
outstanding under the Senior Debt Indenture (as specified on the face of each
of the Senior Debt Securities, PROVIDED, that, in the case of the Senior Debt
Securities with variable rates of interest, the interest rate to be used in
calculating the Composite Rate shall be the interest rate applicable to such
Senior Debt Securities at the beginning of the year in which the Composite
Rate is being determined and, PROVIDED, FURTHER, that, in the case of Senior
Debt Securities which do not bear interest, the interest rate to be used in
calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Senior Debt Securities, calculated at the time of issuance of such
Senior Debt Securities) multiplied, in the case of each of the Senior Debt
Securities, by the percentage of the aggregate principal amount of all of the
Senior Debt Securities then outstanding represented by such Senior Debt
Security. For the purposes of this calculation, the aggregate principal
amounts of outstanding Senior Debt Securities that are denominated in a
foreign currency shall be calculated in the manner set forth in Section 11.11
of the Senior Debt Indenture.
'Consolidated Net Tangible Assets' is defined in the Senior Debt Indenture
to mean, as of any particular time, the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom: (a) all current liabilities, except for current maturities of
long-term debt and of obligations under capital leases; and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, to the extent included in said aggregate amount
of assets, all as set forth on the most recent consolidated balance sheet of
the
9
Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
'Principal Property' is defined in the Senior Debt Indenture to mean the
land, improvements, buildings and fixtures (including any leasehold interest
therein) constituting the principal corporate office, any manufacturing plant,
any manufacturing, distribution or research facility or any self-serve center
(in each case, whether now owned or hereafter acquired) which is owned or
leased by the Company or any Subsidiary and is located within the United
States of America or Canada unless the Board of Directors of the Company has
determined in good faith that such office, plant facility or center is not of
material importance to the total business conducted by the Company and its
Subsidiaries taken as a whole. With respect to any Sale and Lease-Back
Transaction or series of related Sale and Lease-Back Transactions, the
determination of whether any property is a Principal Property shall be
determined by reference to all properties affected by such transaction or
series of transactions.
'Sale and Lease-Back Transaction' is defined in the Senior Debt Indenture
to mean any arrangement with any person providing for the leasing by the
Company or any Subsidiary of any Principal Property which property has been or
is to be sold or transferred by the Company or such Subsidiary to such person.
'Subsidiary' is defined in the Senior Debt Indenture to mean any
corporation of which outstanding voting stock having the power to elect a
majority of the board of directors of such corporation is at the time owned,
directly or indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the purposes of this
definition, 'voting stock' means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency. (Senior
Debt Indenture Sections 1.1, 3.7 and 3.8)
SUBORDINATED DEBT
The Debt Securities (and, in the case of Bearer Securities, any coupons
appertaining thereto) issued under the Subordinated Debt Indenture (the
'Subordinated Debt Securities') will rank junior to 'Senior Indebtedness' (as
such term is defined in the Subordinated Debt Indenture). The payment of the
principal, premium, if any, and interest on the Subordinated Debt Securities
is subordinated and junior in right of payment, to the extent set forth in the
Subordinated Debt Indenture, to the prior payment in full of all 'Senior
Indebtedness.' Until such prior payment in full, no payment (including the
making of any deposit in trust with the Trustee in accordance with Section
10.1 of the Subordinated Debt Indenture) on account of principal, premium, if
any, or interest on any Subordinated Debt Securities or payment to acquire any
of the Subordinated Debt Securities for cash or property may be made if, at
the time of such payment or immediately after giving effect thereto, (i) any
insolvency, bankruptcy proceedings, receivership, liquidation or
reorganization of the Company, or the voluntary liquidation, dissolution or
winding up of the Company or the assignment for the benefit of creditors or
any other marshalling of assets of the Company shall have occurred, (ii) any
Subordinated Debt Security is declared due and payable before its expressed
maturity because of the occurrence of an Event of Default under the
Subordinated Debt Indenture (see 'Events of Default' below), (iii) there shall
exist a default in the payment of the principal, premium, if any, or interest
with respect to any Senior Indebtedness, or (iv) for a period of 180 days
after delivery of notice referred to below, there shall exist a default (other
than a default in the payment of principal, premium, if any, or interest) with
respect to any Senior Indebtedness permitting the holders thereof to
accelerate the maturity thereof and written notice of such default shall have
been given to the Company and the Trustee pursuant to the Subordinated Debt
Indenture; PROVIDED that only one such 180-day blockage period following such
a notice of default may be commenced within any 365 consecutive days and no
default which existed on the date any blockage period commenced shall be the
basis for the commencement of any subsequent blockage period unless such
default is cured or waived for a period of not less than 90 consecutive days.
The foregoing provision shall not prevent
10
the Trustee from making payments on any Subordinated Debt Securities from
monies or securities deposited with the Trustee pursuant to the terms of
Section 10.1 of the Subordinated Debt Indenture if at the time such deposit
was made or immediately after giving effect thereto the above conditions did
not exist. (Subordinated Debt Indenture, Sections 13.1, 13.2 and 13.3)
Under the Subordinated Debt Indenture, the term 'Senior Indebtedness'
means (a) all indebtedness and obligations of the Company existing on the date
of the Subordinated Debt Indenture or created, incurred or assumed thereafter,
and which (i) are for money borrowed; (ii) are evidenced by any bond, note,
debenture or similar instrument; (iii) represent the unpaid balance on the
purchase price of any assets or services of any kind; (iv) are obligations as
lessee under any lease of property, equipment or other assets required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles; (v) are reimbursement obligations with respect to
letters of credit or other similar instruments; (vi) are obligations under
interest rate, currency or other indexed exchange agreements, agreements for
caps or floors on interest rates, foreign exchange agreements or any other
similar agreements; (vii) are obligations under any guaranty, endorsement or
other contingent obligations in respect of, or to purchase or otherwise
acquire, indebtedness or obligations of other persons of the types referred to
in clauses (i) through (vi) above (other than endorsements for collection or
deposits in the ordinary course of business); or (viii) are obligations of
other persons of the type referred to in clauses (i) through (vii) above
secured by a lien to which any of the properties or assets of Company are
subject, whether or not the obligations secured thereby shall have been issued
by the Company or shall otherwise be the legal liability of the Company; and
(b) any deferrals, renewals, amendments, modifications, refundings or
extensions of any such indebtedness or obligations of the types referred to
above; notwithstanding the foregoing, Senior Indebtedness shall not include
(1) any indebtedness of the Company to any of its subsidiaries, (2) any
indebtedness or obligation of the Company which by its express terms is stated
to be not superior in the right of payment to the Subordinated Debt Securities
or to rank PARI PASSU with, or to be subordinated to, the Subordinated Debt
Securities or (3) any indebtedness or obligation incurred by the Company in
connection with the purchase of any assets or services in the ordinary course
of business and which constitutes a trade payable or account payable.
(Subordinated Debt Indenture, Section 1.1)
By reason of such subordination, in the event of insolvency, creditors of
the Company (including holders of Subordinated Debt Securities) who are not
holders of Senior Indebtedness may recover less, ratably, than holders of
Senior Indebtedness.
If this Prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the applicable Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
MERGER OR CONSOLIDATION
Each of the Indentures provides that the Company may not merge or
consolidate with any other person or persons (whether or not affiliated with
the Company) or sell, convey, transfer or lease all or substantially all of
its Property to any other person or persons (whether or not affiliated with
the Company), unless (a) either the Company shall be the continuing person, or
the successor person or the person which acquires by sale, conveyance,
transfer or lease substantially all the property of the Company (if other than
the Company) shall be a corporation organized under the laws of the United
States or any state thereof and shall expressly assume all the obligations of
the Company under such Indenture and the relevant Debt Securities and coupons
and (b) immediately after giving effect to such merger, consolidation, sale,
conveyance, transfer or lease, no Event of Default or event or condition
which, after notice or lapse of time or both, would become an Event of Default
with respect to the Debt Securities of any series under such Indenture shall
have occurred and be continuing. After any such transfer (except in the case
of a lease), the Company shall be discharged from all obligations and
covenants under such Indenture. (Senior and Subordinated Debt Indentures,
Sections 9.1 and 9.2)
11
EVENTS OF DEFAULT
An Event of Default is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being: (a) default in
payment of any principal of or premium, if any, on the Debt Securities of such
series, either at maturity, upon any redemption, by declaration or otherwise
(including a default in the deposit of any sinking fund payment with respect
to the Debt Securities of such series when and as due); (b) default for 30
days in payment of any interest on any Debt Securities of such series; (c)
default for 90 days after written notice in the observance or performance of
any other covenant or agreement in the Debt Securities of such series or such
Indenture other than a covenant or agreement which is not applicable to the
Debt Securities of such series; (d) certain events of bankruptcy, insolvency
or reorganization; or (e) any other Event of Default provided in the
supplemental indenture under which such series of Debt Securities is issued,
in the form of Debt Security for such series or otherwise established as
contemplated by the Senior and Subordinated Debt Indentures. (Senior and
Subordinated Debt Indentures, Section 5.1)
Each Indenture provides that (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of
Debt Securities issued under such Indenture or due to the default in the
performance of any other covenant or agreement of the Company applicable to
the Debt Securities of such series but not applicable to Debt Securities of
any other series issued under such Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of such series may declare
the principal (or such portion thereof as may be specified in the terms
thereof) of all Debt Securities of such series and interest accrued thereon to
be due and payable immediately; and (b) if an Event of Default due to a
default in the performance of any covenants or agreements applicable to
outstanding Debt Securities of more than one series issued under such
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of outstanding Debt
Securities of all such affected series (treated as one class) may declare the
principal (or such portion thereof as may be specified in the terms thereof)
of all such Debt Securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on such Debt Securities) by the
holders of a majority in principal amount of the outstanding Debt Securities
of all such affected series (treated as one class). If an Event of Default due
to certain events of bankruptcy, insolvency or reorganization shall occur, the
principal (or such portion thereof as may be specified in the terms thereof)
of and interest accrued on all Debt Securities then outstanding shall become
due and payable immediately, without action by the Trustees or the holders of
any such Debt Securities. (Senior and Subordinated Debt Indentures, Sections
5.1 and 5.10)
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of
care, to be indemnified by the holders of Debt Securities issued under such
Indenture before proceeding to exercise any right or power under such
Indenture at the request of such holders. (Senior and Subordinated Debt
Indentures, Section 5.6). Subject to such provisions for the indemnification
and certain other limitations, the holders of a majority in principal amount
of the outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class) may 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 such
series. (Senior and Subordinated Debt Indentures, Section 5.9)
Each Indenture provides that no holder of Debt Securities of any series or
of any coupon issued under such Indenture may institute any action against the
Company under such Indenture (except actions for payment of overdue principal,
premium, if any, or interest) unless (1) such holder previously shall have
given to the Trustee written notice of default and continuance thereof, (2)
the holders of not less than 25% in aggregate principal amount of the
outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class) shall have requested the Trustee to
12
institute such action and shall have offered the Trustee reasonable indemnity,
(3) the Trustee shall not have instituted such action within 60 days of such
request and (4) the Trustee shall not have received direction inconsistent
with such written request by the holders of a majority in principal amount of
the outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class). (Senior and Subordinated Debt Indentures,
Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file annually
with the Trustee a certificate to the effect that no default exists under such
Indenture or a certificate specifying any default that exists. (Senior and
Subordinated Debt Indentures, Section 3.5)
DEFEASANCE
Each Indenture provides that the Company may defease and be discharged
from any and all obligations (except as otherwise described in (a) below) with
respect to the Debt Securities of any series which have not already been
delivered to the Trustee for cancellation and which have either become due and
payable or are by their terms due and payable within one year (or scheduled
for redemption within one year) by irrevocably depositing with the Trustee, as
trust funds, money or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations (as defined) which through the payment of
principal and interest in accordance with their terms will provide money, in
an amount certified to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium, if any) and interest on such Debt Securities.
In addition, each Indenture provides that with respect to each series of
Debt Securities issued under such Indenture, the Company may elect either (a)
to defease and be discharged from any and all obligations with respect to the
Debt Securities of such series (except for the obligations to register the
transfer or exchange of the Debt Securities of such series and of coupons
appertaining thereto, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities of such series and of coupons appertaining thereto, to
maintain an office or agency in respect of the Debt Securities of such series
and to hold moneys for payment in trust) or (b) to be released from the
restrictions described under 'Senior Debt,' if applicable, and 'Merger or
Consolidation' and, to the extent specified in connection with the issuance of
such series of Debt Securities, other covenants applicable to such series of
Debt Securities, upon the deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of money or, in the case of Debt
Securities payable only in U.S. dollars, U.S. Government Obligations which
through the payment of principal and interest in accordance with their terms
will provide money, in an amount certified to be sufficient to pay at maturity
(or upon redemption) the principal of (and premium, if any) and interest on
the Debt Securities of such series. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) to the effect that the holders of the
Debt Securities of such series 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. Such
opinion, in the case of a defeasance under clause (a) above, must refer to and
be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of such Indenture.
In the event of any 'legal' defeasance of any series of Subordinated Debt
Securities issued thereunder, the Subordinated Debt Indenture provides that
holders of all outstanding Senior Indebtedness will receive written notice of
such defeasance. (Senior and Subordinated Debt Indentures, Section 10.1)
The foregoing provisions relating to defeasance may be modified in
connection with the issuance of any series of Debt Securities, and any such
modification will be described in the applicable Prospectus Supplement.
13
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants or Events of
Default for the protection of the holders of any Debt Securities, (d) cure any
ambiguity or correct any inconsistency in such Indenture or add any other
provision which shall not adversely affect the interests of the holders of the
Debt Securities, (e) establish the forms or terms of Debt Securities of any
series or of the coupons appertaining to such Debt Securities, (f) change,
modify or eliminate any provision of the Senior Debt Indenture or the
Subordinated Debt Indenture which shall not be effective with respect to any
Debt Security issued prior to the execution of such supplemental indenture and
(g) evidence the acceptance of appointment by a successor trustee. (Senior and
Subordinated Debt Indentures, Section 8.1)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; PROVIDED that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) extend the final maturity of any Debt Security,
or reduce the principal amount thereof, or reduce the rate (or alter the
method of computation) of interest thereon or reduce (or alter the method of
computation of) any amount payable in respect of or extend the time for
payment of interest thereon, or reduce any amount payable on or extend the
time for the redemption or repayment thereof or change the currency in which
the principal thereof, premium, if any, or interest thereon is payable or
reduce the amount payable upon acceleration or alter certain provisions of the
Indenture relating to the Debt Securities issued thereunder not denominated in
U.S. dollars or impair or affect the right to institute suit for the
enforcement of any payment on any Debt Security when due or, if the Debt
Securities provide therefor, any right of optional repayment at the option of
the holder of such Debt Securities or (b) modify any of the provisions of the
Indenture regarding modification of such Indenture, except to increase the
percentage in principal amount of Debt Securities of any series, the consent
of the holders of which is required for any such modification. (Senior and
Subordinated Debt Indentures, Section 8.2)
In addition, the Subordinated Debt Indenture provides that it may not be
amended to alter the subordination of any outstanding Subordinated Debt
Securities without the consent of each holder of Senior Indebtedness then
outstanding whose rights would be adversely affected thereby. (Subordinated
Debt Indenture, Section 8.6)
GOVERNING LAW
Each of the Indentures provide that it and the Debt Securities issued
thereunder shall be deemed to be a contract under, and for all purposes shall
be construed in accordance with, the laws of the State of New York.
CONCERNING THE SENIOR DEBT INDENTURE TRUSTEE
First Union National Bank of North Carolina, the Trustee under the Senior
Debt Indenture, is one of a number of banks with which the Company maintains
ordinary banking relationships.
14
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four
ways: (i) directly to purchasers, (ii) through agents, (iii) through
underwriters and (iv) through dealers.
Offers to purchase Debt Securities may be solicited by agents designated
by the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of any Debt Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement relating to such Debt Securities. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. Agents may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
and may be customers of, engage in transactions with or perform services for
the Company in the ordinary course of business.
If any underwriters are utilized in the sale of any Debt Securities, the
Company will enter into an underwriting agreement with such underwriters at
the time of sale to them and the names of the underwriters and the terms of
the transaction will be set forth in the Prospectus Supplement relating to
such Debt Securities, which will be used by the underwriters to make resales
of such Debt Securities. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of any Debt Securities, the Company
will sell such Debt Securities to the dealer, as principal. The dealer may
then resell such Debt Securities to the public at varying prices to be
determined by such dealer at the time of resale. Dealers may be entitled under
agreements which may be entered into with the Company to indemnification by
the Company against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or
perform services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain purchasers to
purchase Debt Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission
payable for solicitation of such offers.
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are sold
by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
LEGAL OPINIONS
The validity of the Debt Securities is being passed upon for the Company
by Arnall Golden & Gregory, Atlanta, Georgia.
Certain legal matters relating to offerings of Debt Securities will be
passed upon on behalf of the applicable dealers, underwriters or agents by
counsel named in the applicable Prospectus Supplement.
15
EXPERTS
The consolidated balance sheets as of July 2, 1994 and July 3, 1993, and
the consolidated results of operations, shareholders' equity, cash flows and
schedules for each of the three years in the period ended July 2, 1994, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated herein
by reference in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
With respect to the unaudited interim financial information for the
quarters ended October 1, 1994, December 31, 1994 and April 1, 1995, Arthur
Andersen LLP has applied limited procedures in accordance with professional
standards for a review of that information. However, their separate reports
thereon state that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of reliance on
their reports on that information should be restricted in light of the limited
nature of the review procedures applied. In addition, the accountants are not
subject to the liability provisions of Section 11 of the Securities Act of
1933 for their reports on the unaudited interim financial information because
those reports are not a 'report' or a 'part' of the registration statement
prepared or certified by the accountants within the meaning of Sections 7 and
11 of the Securities Act of 1933.
16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission
Filing Fee......................... $ 172,414
Rating Agency Fees................... *
Fees and Expenses of Indenture
Trustees........................... *
Printing Expenses.................... *
Accountants' Fees and Expenses....... *
Legal Fees and Expenses.............. *
Blue Sky Fees and Expenses........... *
Miscellaneous Expenses............... *
---------
Total............................ $
---------
---------
- ---------
* To be provided by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law and the Restated
Certificate of Incorporation and the By-laws of the Company contain provisions
covering indemnification of corporate directors and officers against certain
liabilities and expenses incurred as a result of proceedings involving such
persons in their capacities as directors and officers, including proceedings
under the Securities Act and the Exchange Act.
The Company has entered into indemnity contracts and provides indemnity
insurance pursuant to which officers and directors are indemnified and insured
against liability or loss under certain circumstances which may include
liability or related loss under the Securities Act and the Exchange Act.
Any agents, dealers or underwriters, who execute the agreements filed as
Exhibit 1 to this registration statement, will agree to indemnify the
Company's directors and its officers against certain liabilities which might
arise under the Securities Act or Exchange Act from information furnished to
the Company by or on behalf of any such indemnifying party.
ITEM 16. EXHIBITS
EXHIBIT NO.
- ------------------------
1 -- Form of Underwriting Agreement. (To be filed by
amendment).
4(a) -- Form of Senior Debt Indenture between Sysco
Corporation and First Union National Bank of North
Carolina, as trustee.
4(b) -- Form of Subordinated Debt Indenture between Sysco
Corporation and , as trustee.
5 -- Opinion of Arnall Golden & Gregory, counsel to Sysco
Corporation, as to the validity of the Debt Securities
to be issued (To be filed by amendment).
12 -- Computation of Ratio of Earnings to Fixed Charges.
24(a) -- Consent of Arthur Andersen LLP.
24(b) -- Consent of Arnall Golden & Gregory, counsel to Sysco
Corporation, is contained in the opinion filed as
Exhibit 5.
26(a) -- Form T-1 Statement of Eligibility of Trustee under the
Trust Indenture Act of 1939 of First Union National
Bank of North Carolina (bound separately).
28 -- Letter from Arthur Andersen LLP regarding unaudited
interim financial information.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(1) to file during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act.
II-1
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering; and
(b) that, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended,
in accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, AND THE STATE OF TEXAS, ON
THIS 6TH DAY OF JUNE, 1995.
SYSCO CORPORATION
By: /s/ BILL M. LINDIG
BILL M. LINDIG
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED. EACH PERSON WHOSE SIGNATURE APPEARS
BELOW HEREBY CONSTITUTES AND APPOINTS JOHN F. WOODHOUSE, BILL M. LINDIG AND
JOHN K. STUBBLEFIELD, JR., OR EITHER ONE OF THEM, AS SUCH PERSON'S TRUE AND
LAWFUL ATTORNEY-IN-FACT AND AGENT WITH FULL POWER OF SUBSTITUTION FOR SUCH
PERSON AND IN SUCH PERSON'S NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES,
TO SIGN AND TO FILE WITH THE SECURITIES AND EXCHANGE COMMISSION, ANY AND ALL
AMENDMENTS AND POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, WITH
EXHIBITS THERETO AND OTHER DOCUMENTS IN CONNECTION THEREWITH, GRANTING UNTO
SAID ATTORNEY-IN-FACT AND AGENT FULL POWER AND AUTHORITY TO DO AND PERFORM
EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT
THE PREMISES, AS FULLY TO ALL INTENTS AND PURPOSES AS SUCH PERSON MIGHT OR
COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID
ATTORNEY-IN-FACT AND AGENT, OR ANY SUBSTITUTE THEREFOR, MAY LAWFULLY DO OR
CAUSE TO BE DONE BY VIRTUE THEREOF.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------- -------------------------------------- -------------
<S> <C> <C>
/s/BILL M. LINDIG President, Chief Executive Officer and June 6, 1995
BILL M. LINDIG Director (principal executive officer)
/s/JOHN K. STUBBLEFIELD, JR. Senior Vice President and Chief June 6, 1995
JOHN K. STUBBLEFIELD, JR. Financial Officer (principal financial
and accounting officer)
/s/JOHN F. WOODHOUSE Chairman of the Board of Directors June 6, 1995
JOHN F. WOODHOUSE
________________________________ Director
JOHN W. ANDERSON
/s/JOHN F. BAUGH Director June 6, 1995
JOHN F. BAUGH
II-3
/s/COLIN G. CAMPBELL Director June 6, 1995
COLIN G. CAMPBELL
/s/CHARLES H. COTROS Director June 6, 1995
CHARLES H. COTROS
/s/FRANK A. GODCHAUX III Director June 6, 1995
FRANK A. GODCHAUX III
/s/JONATHAN GOLDEN Director June 6, 1995
JONATHAN GOLDEN
________________________________ Director
DONALD J. KELLER
________________________________ Director
RICHARD G. MERRILL
/s/DONALD H. PEGLER, JR. Director June 6, 1995
DONALD H. PEGLER, JR.
/s/FRANK H. RICHARDSON Director June 6, 1995
FRANK H. RICHARDSON
/s/PHYLLIS S. SEWELL Director June 6, 1995
PHYLLIS S. SEWELL
/s/ARTHUR J. SWENKA Director June 6, 1995
ARTHUR J. SWENKA
________________________________ Director
THOMAS B. WALKER, JR.
</TABLE>
II-4
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 6, 1995
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYSCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
EXHIBITS
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
1 -- Form of Underwriting Agreement.*
4(a) -- Form of Senior Debt Indenture between Sysco
Corporation and First Union National Bank of North
Carolina, as trustee.
4(b) -- Form of Subordinated Debt Indenture between Sysco
Corporation and , as trustee.
5 -- Opinion of Arnall Golden & Gregory counsel to
Sysco Corporation, as to the validity of the Debt
Securities to be issued.*
12 -- Computation of Ratio of Earnings to Fixed Charges.
24(a) -- Consent of Arthur Andersen LLP.
24(b) -- Consent of Arnall Golden & Gregory, counsel to Sysco
Corporation, is contained in the opinion filed as
Exhibit 5.
26(a) -- Form T-1 Statement of Eligibility of Trustee under
the Trust Indenture Act of 1939 of First Union
National Bank of North Carolina (bound separately).
28 -- Letter from Arthur Andersen LLP regarding
unaudited interim financial information.
- ---------------
* To be filed by amendment.
<PAGE>
EXHIBIT 4(a)
DRAFT OF JUNE 5, 1995
SYSCO CORPORATION
AND
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, TRUSTEE
INDENTURE
DATED AS OF JUNE ___, 1995
<PAGE>
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS.................................................... 1
1.1 Certain Terms Defined.......................................... 1
ARTICLE II - SECURITIES.................................................... 7
2.1 Forms Generally................................................ 7
2.2 Form of Trustee's Certificate of Authentication................ 8
2.3 Amount Unlimited; Issuable in Series........................... 9
2.4 Authentication and Delivery of Securities...................... 12
2.5 Execution of Securities........................................ 14
2.6 Certificate of Authentication.................................. 15
2.7 Denomination and Date of Securities; Payments of Interest...... 15
2.8 Registration, Transfer and Exchange............................ 16
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...... 19
2.10 Cancellation of Securities; Destruction Thereof................ 20
2.11 Temporary Securities........................................... 20
2.12 CUSIP Numbers.................................................. 21
ARTICLE III - COVENANTS OF THE ISSUER...................................... 21
3.1 Payment of Principal and Interest.............................. 21
3.2 Offices for Payments, etc...................................... 21
3.3 Appointment to Fill a Vacancy in Office of Trustee............. 22
3.4 Paying Agents.................................................. 22
3.5 Written Statement to Trustee................................... 23
3.6 Luxembourg Publications........................................ 24
3.7 Certain Covenants Applicable to the Securities; Limitations
on Liens....................................................... 24
ARTICLE IV - SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE...................................................... 26
4.1 Issuer to Furnish Trustee Information As to Names and
Addresses of Securityholders................................... 26
4.2 Reports by the Issuer.......................................... 26
4.3 Reports by the Trustee......................................... 26
ARTICLE V - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT..................................................... 26
5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default..................................................... 26
5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.. 29
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5.3 Application of Proceeds........................................ 31
5.4 Suits for Enforcement.......................................... 32
5.5 Restoration of Rights on Abandonment of Proceedings............ 32
5.6 Limitations on Suits by Securityholders........................ 32
5.7 Unconditional Right of Securityholder to Institute Certain
Suits.......................................................... 33
5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default..................................................... 33
5.9 Control by Holders of Securities............................... 33
5.10 Waiver of Past Defaults........................................ 34
5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.......................................... 34
5.12 Right of Court to Require Filing of Undertaking to Pay Costs.. 35
ARTICLE VI - CONCERNING THE TRUSTEE........................................ 35
6.1 Duties and Responsibilities of the Trustee; Prior to Default... 35
6.2 Certain Rights of the Trustee.................................. 37
6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof.................. 38
6.4 Trustee and Agents May Hold Securities or Coupons;
Collections; etc............................................... 38
6.5 Moneys Held by Trustee......................................... 38
6.6 Compensation and Indemnification of Trustee and Its
Prior Claim.................................................... 38
6.7 Right of Trustee to Rely on Officer's Certificate, etc......... 39
6.8 Indentures Not Creating Potential Conflicting Interests for
the Trustee.................................................... 39
6.9 Persons Eligible for Appointment as Trustee.................... 39
6.10 Resignation and Removal; Appointment of Successor Trustee...... 40
6.11 Acceptance of Appointment by Successor Trustee................. 42
6.12 Merger, Conversion, Consolidation or Succession to Business
of Trustee..................................................... 43
6.13 Appointment of Authenticating Agent............................ 43
ARTICLE VII - CONCERNING THE SECURITYHOLDERS............................... 45
7.1 Evidence of Action Taken by Securityholders.................... 45
7.2 Proof of Execution of Instruments and of Holding of Securities. 45
7.3 Holders to be Treated as Owners................................ 46
7.4 Securities Owned by Issuer Deemed Not Outstanding.............. 46
7.5 Right of Revocation of Action Taken............................ 47
7.6 Record Date for Consents and Waivers........................... 47
ARTICLE VIII - SUPPLEMENTAL INDENTURES..................................... 48
8.1 Supplemental Indentures Without Consent of Securityholders..... 48
8.2 Supplemental Indentures With Consent of Securityholders........ 49
8.3 Effect of Supplemental Indenture............................... 51
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8.4 Documents to Be Given to Trustee............................... 51
8.5 Notation on Securities in Respect of Supplemental Indentures... 51
ARTICLE IX - CONSOLIDATION, MERGER, SALE OR CONVEYANCE..................... 51
9.1 Issuer May Consolidate, etc.................................... 51
9.2 Successor Issuer Substituted................................... 52
9.3 Opinion of Counsel to Trustee.................................. 52
ARTICLE X - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS..................................................... 53
10.1 Satisfaction and Discharge of Indenture........................ 53
10.2 Application by Trustee of Funds Deposited for Payment
of Securities.................................................. 57
10.3 Repayment of Moneys Held by Paying Agent....................... 57
10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years.................................................. 57
10.5 Indemnity for U.S. Government Obligations...................... 58
ARTICLE XI - MISCELLANEOUS PROVISIONS...................................... 58
11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability........................ 58
11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons.......................... 58
11.3 Successors and Assigns of Issuer Bound by Indenture.......... 58
11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons......................................... 58
11.5 Officer's Certificates and Opinions of Counsel; Statements
to Be Contained Therein........................................ 59
11.6 Payments Due on Saturdays, Sundays and Holidays................ 60
11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939.................................................... 60
11.8 New York Law to Govern......................................... 61
11.9 Counterparts................................................... 61
11.10 Effect of Headings............................................. 61
11.11 Securities in a Foreign Currency or in ECU..................... 61
11.12 Judgment Currency.............................................. 62
ARTICLE XII - REDEMPTION OF SECURITIES AND SINKING FUNDS................... 62
12.1 Applicability of Article....................................... 62
12.2 Notice of Redemption; Partial Redemptions...................... 62
12.3 Payment of Securities Called for Redemption.................... 64
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12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................... 65
12.5 Mandatory and Optional Sinking Funds........................... 65
-iv-
THIS INDENTURE, dated as of June 15, 1995 between SYSCO CORPORATION,
a Delaware corporation (the "Issuer"), and FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, a national banking association, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN TERMS DEFINED. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or are defined
therein by reference to the Securities Act of 1933 (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means such accounting principles as
are generally accepted at the time of any computation. 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. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
-1-
"ATTRIBUTABLE DEBT" with regard to a Sale and Lease-Back Transaction
with respect to any property means, at the time of determination, the lesser of:
(a) the fair market value of such property (as determined in good faith by the
Board of Directors of the Issuer); or (b) the present value of the total net
amount of rent required to be paid under such lease during the remaining term
thereof (including any period for which such lease has been extended),
discounted at the rate of interest set forth or implicit in the terms of such
lease (or, if not practicable to determine such rate, the weighted average
interest rate per annum borne by the Securities then outstanding) compounded
semi-annually. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net amount
determined assuming termination upon the first date such lease may be terminated
(in which case the net amount shall also include the amount of the penalty, but
no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated) or the net amount
determined assuming no such termination.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section
6.13.
"AUTHORIZED NEWSPAPER" means a newspaper (which, in the case of The
City of New York, will, if practicable, be THE WALL STREET JOURNAL (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be THE
FINANCIAL TIMES (London Edition) and, in the case of Luxembourg, will, if
practicable, be THE LUXEMBURGER WORT) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"BOARD OF DIRECTORS" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in
the city of the principal Corporate Trust Office of the Trustee and in the city
(or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is neither a Saturday, Sunday or a legal
holiday nor a day on which banking institutions are authorized or required by
law or regulation to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the
-2-
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"COMPOSITE RATE" means, at any time, the rate of interest, per
annum, compounded semiannually, equal to the sum of the rates of interest borne
by each of the Securities Outstanding hereunder (as specified on the face of
each of the Securities, PROVIDED, that, in the case of the Securities with
variable rates of interest, the interest rate to be used in calculating the
Composite Rate shall be the interest rate applicable to such Securities at the
beginning of the year in which the Composite Rate is being determined and,
PROVIDED, further, that, in the case of Securities which do not bear interest,
the interest rate to be used in calculating the Composite Rate shall be a rate
equal to the yield to maturity on such Securities, calculated at the time of
issuance of such Securities) multiplied, in the case of each of the Securities,
by the percentage of the aggregate principal amount of all of the Securities
then Outstanding represented by such Security. For the purposes of this
calculation, the aggregate principal amounts of Outstanding Securities that are
denominated in a foreign currency, shall be calculated in the manner set forth
in Section 11.11.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any particular time,
the aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom: (a) all current liabilities, except
for current maturities of long-term debt and of obligations under capital
leases; and (b) intangible assets, to the extent included in said aggregate
amount of assets, all as set forth on the most recent consolidated balance sheet
of the Issuer and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered which office is, at the date as of which this Indenture
is dated, located in Charlotte, North Carolina. Where the terms of this
Indenture refer to performance in New York, New York, the location and address
of such office are as follows:
c/o IBJ Shroeder Bank & Trust
Stock Transfer Department, SCI
One State Street
New York, New York 10004
Attention: Raymond Lifzewsky
Phone: (212) 858-2847
"COUPON" means any interest coupon appertaining to a Security.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such
-3-
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of
that series.
"DOLLAR" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"FOREIGN CURRENCY" means a currency issued by the government of a
country other than the United States.
"HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" or other similar
terms mean (a) in the case of any Registered Security, the person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.1.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"INTEREST" shall include interest payable after maturity and any
additional amount payable in connection with the applicable Securities.
"ISSUER" means Sysco Corporation, a Delaware corporation and,
subject to Article IX, its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of the
Issuer signed in its name by the Chairman or Vice Chairman of the Board of
Directors, the President, any Vice President or the Treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in section
11.12.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman
or Vice Chairman of the Board of Directors, the President or any Vice President
or the Treasurer of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 11.5.
-4-
"OPINION OF COUNSEL" means an opinion in writing signed by the
General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with section 314 of the Trust Indenture
Act of 1939 and include the statements provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereat pursuant to Section 5.1.
"OUTSTANDING" when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations in the necessary
amount (as provided for in Section 10.1) shall have been deposited in
trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein PROVIDED, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest,
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if any, thereon, the stated maturity or maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the Issuer or
its agents upon the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"PRINCIPAL PROPERTY" means the land, improvements, buildings and
fixtures (including any leasehold interest therein) constituting the principal
corporate office, any manufacturing plant, any manufacturing, distribution or
research facility or self-serve center (in each case, whether now owned or
hereafter acquired) which is owned or leased by the Issuer or any Subsidiary and
is located within the United States of America or Canada unless the Board of
Directors of the Issuer has determined in good faith that such office, plant,
facility or center is not of material importance to the total business conducted
by the Issuer and its Subsidiaries taken as a whole. With respect to any Sale
and Lease-Back Transaction or series of related Sale and Lease-Back
Transactions, the determination of whether any property is a Principal Property
shall be determined by reference to all properties affected by such transaction
or series of transactions.
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED GLOBAL SECURITY" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section
11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, (whether or not designated by numbers or words added before or after
the title "vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
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"SALE AND LEASE-BACK TRANSACTION" means any arrangement with any
Person providing for the leasing by the Issuer or any Subsidiary of any
Principal Property which property has been or is to be sold or transferred by
the Issuer or such Subsidiary to such Person.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"SUBSIDIARY" means any corporation of which outstanding voting stock
having the power to elect a majority of the board of directors of such
corporation is at the time owned, directly or indirectly, by the Issuer or by
one or more other Subsidiaries, or by the Issuer and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any agent of such trustee and any successor trustee. "Trustee" shall
also mean or include each Person who is then a trustee hereunder and if at any
time there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the trustee with respect to the Securities
of such series.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 10.1(a).
"YIELD TO MATURITY" means the yield to maturity (i) on a series of
Securities or (ii) if the Securities of a series are issuable from time to time,
on a Security of such series, calculated at the time of issuance of such series
in the case of clause (i) or at the time of issuance of such Security of such
series in the case of clause (ii), or, if applicable, at the most recent
redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial
practice as is specified in the terms of such Security.
ARTICLE II
SECURITIES
2.1 FORMS GENERALLY. The Securities of each series and the Coupons,
if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (and to the extent
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established pursuant to rather than set forth in a Board Resolution, in an
Officer's Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
Date:
"This is one of the Securities referred to in the within-mentioned
Indenture.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Trustee
By:
-------------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Authenticating Agent's certificate
of authentication to be borne by the Securities of each such series shall be
substantially as follows:
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"This is one of the Securities referred to in the within-mentioned
Indenture.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Authenticating
Agent
By:
-------------------------------
Authorized Officer"
2.3 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 and each such
series shall rank equally and PARI PASSU with all other unsecured and
unsubordinated debt of the Issuer. There shall be established by or pursuant to
one or more Board Resolutions (and to the extent established pursuant to rather
than set forth in a Board Resolution, in an Officer's Certificate detailing such
establishment) or in one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of all
other series;
(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 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency or units
thereof in which the Securities of that series are denominated (including,
but not limited to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
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(6) the method by which amounts payable in respect of
principal, premium, if any, or interest, if any, on such Securities may be
calculated, and any currencies, commodities or indices, or value, rate or
price, relevant to such calculation;
(7) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(8) the right, if any, of the Issuer to redeem or cause to be
redeemed Securities of the series, in whole or in part, at its option and
the period or periods within which, the price or prices (and/or method by
which such price or prices shall be determined) at which and any terms and
conditions upon which and the manner in which (if different from the
provision of Article XII hereof), Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series, in whole or in part, pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices (and/or the method by
which such price or prices shall be determined) at which, the period or
periods within which and any terms and conditions upon which and the
manner in which (if different from the provisions of Article XII hereof)
Securities of the series shall be redeemed, purchased or repaid pursuant
to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(12) if other than the coin or currency or units thereof in
which the Securities of that series are denominated, the coin or currency
or units thereof in which payment of the principal of or interest on the
Securities of such series shall be payable;
(13) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency or units thereof other than that in which
the Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of and/or interest
on the Securities of the series may be determined with reference to the
value or price of any one or more commodities, currencies or indices, the
manner in which such amounts will be determined;
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(15) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon and, if other than as provided in Section
2.8, the terms upon which Unregistered Securities of any series may be
exchanged for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option
to redeem such Securities rather than pay such additional amounts;
(17) 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, the
form and terms of such certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series;
(19) any other events of default or covenants not set forth
herein with respect to the Securities of such series;
(20) the terms and conditions upon which and the manner in
which Securities of the series may be defeased or discharged if different
from the provisions set forth under the defeasance provision herein;
(21) offices at which presentations and demands may be made
and notices may be served, if other than the Corporate Trust Office of the
Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant
to such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
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2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by an Issuer Order. The maturity date, original issue date,
interest rate and any other terms of the Securities of such series and Coupons,
if any, appertaining thereto shall be determined by or pursuant to such Issuer
Order and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent, which instructions
shall be promptly confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs 2, 3 and 4 below only at or before the time of the first request
of the Issuer to the Trustee to authenticate Securities of such series) and
(subject to Section 6.1) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not
to be delivered to the Issuer, provided that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be determined
by an Issuer Order or pursuant to such procedures and (d) if provided for
in such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Issuer or
its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons, it
any, were established;
(3) an Officer's Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form or
forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may reasonably
request; and
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(4) At the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting to it rely on an Opinion
of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the
provisions of this Indenture;
(b) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to
and paid for by the purchasers thereof, they will be entitled to the
benefits of this Indenture, will have been duly issued under this
Indenture and will be valid and binding obligations of the Issuer,
enforceable in accordance with their respective terms; and
(c) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities
and Coupons, if any, will not contravene any provision of the
certificate of incorporation or bylaws of the Issuer or any
agreement or other instrument binding upon the Issuer or, to the
best of such counsel's knowledge, but without any independent
investigation, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Issuer, and no
consent, approval or authorization of any governmental body or
agency is required for the performance by the Issuer of its
obligations under the Securities and Coupons, if any, except such as
are specified and have been obtained and such as may be required by
the securities or blue sky laws of the various states in connection
with the offer and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters except those governed by the laws of jurisdictions other than the
Federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes he and the Trustee are entitled so to rely. Such counsel may
also state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of the
Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
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Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all or a portion of the Securities of such series issued and not yet
canceled or exchanged, (ii) shall be registered in the name of the Depositary
for such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable law or regulation.
2.5 EXECUTION OF SECURITIES. The Securities and, if applicable, each
Coupon appertaining thereto shall be signed on behalf of the Issuer by the
Chairman or Vice Chairman of its Board of Directors or its President, any Vice
President or its Treasurer, under its corporate seal (except in the case of
Coupons) which may, but need not, be attested. Such signatures may be the manual
or facsimile signatures of the present or any future such officers. The seal of
the Issuer may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
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2.6 CERTIFICATE OF AUTHENTICATION. Except as provided in Section
6.13 hereof, only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Indenture or shall
be valid and obligatory for any purpose until the certificate of authentication
on the Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST. The
Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations as shall be specified pursuant to
Section 2.3 or, with respect to the Registered Securities of any series, if not
so established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as specified pursuant
to Section 2.3. The Securities of each series shall bear interest, if any, from
the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to such series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security subsequent
to the record date and prior to such interest payment date, except in the case
of any such transfer or exchange if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Registered
Securities of such series, or, if no such date is so specified, if such interest
payment date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
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2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, of like
tenor, in authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged
as provided below for a Security of the same series, in authorized
denominations, of like tenor and in an equal aggregate principal amount upon
surrender of such Security at an office or agency to be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3,
and the Issuer shall execute, and the Trustee shall authenticate and deliver in
exchange therefor, the Security or Securities which the Holder making the
exchange shall be entitled to receive bearing a number or other distinguishing
symbol not contemporaneously outstanding. Subject to the foregoing, (i) a
Registered Security of any series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered Security or
Securities of the same series; (ii) if the Securities of any Series are issued
in both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, an Unregistered Security may be exchanged for a Registered
Security or Securities of the same series, but a Registered Security may not be
exchanged for an Unregistered Security or Securities; and (iii) if Unregistered
Securities of any series are issued in more than one authorized denomination,
except as otherwise specified pursuant to Section 2.3, any such Unregistered
Security may be exchanged for an Unregistered Security or Securities of the same
series; PROVIDED that in connection with the surrender of any Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default must be surrendered with the Securities being exchanged.
All Registered Securities presented for registration of transfer,
exchange, redemption, repurchase or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
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The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4 for
such Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without Coupons, in any authorized
denominations, of like tenor, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, of like tenor, in an aggregate principal amount equal
to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global
Security or Securities.
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If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, of like tenor, in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, of like tenor, in authorized
denominations, such Registered Global Security shall be canceled by the Trustee
or an agent of the Issuer or the Trustee. Securities in definitive registered
form without coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for any Outstanding Registered Security if such
exchange would result in adverse Federal income tax consequences to the Issuer
(such as, for example, the inability of the Issuer to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income tax
laws.
2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be destroyed, lost or stolen, the
Issuer in its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
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a new Security of the same series, of like tenor, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a
substitute Security or Coupon shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the Security
and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer
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) or its agent connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of then may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All Securities
and Coupons surrendered for payment, repurchase, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer
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or any agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities or Coupons shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall destroy cancelled Securities and
Coupons held by it and deliver a certificate of destruction to the Issuer. If
the Issuer or its agent shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities or Coupons unless and until the same
are delivered to the Trustee or its agent for cancellation.
2.11 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge, in the case of Registered
Securities, at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at
any office or agency maintained by the Issuer for such purpose as specified
pursuant to Section 2.3, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations and, in the case of Unregistered Securities, having attached
thereto any appropriate Coupons. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to any restrictions or
limitations that may be established with respect to the Securities of any series
pursuant to Section 2.3 (including any provision that Unregistered Securities of
such series initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located outside the United
States and the procedures pursuant to which definitive or global Unregistered
Securities of such series would be issued in exchange for such temporary global
Unregistered Security).
2.12 CUSIP NUMBERS. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers 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 a redemption and that reliance may be placed only on the other
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identification numbers printed on the Securities, and any such notice of
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
COVENANTS OF THE ISSUER
3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons appertaining thereto and in this Indenture. The interest on Unregistered
Securities with Coupons attached shall be payable only upon presentation and
surrender of the Coupons evidencing the right to such installment of interest as
they severally mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary form, the
interest on any such temporary Unregistered Security shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon
of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the
Holders entitled thereto and, at the option of the Issuer, may be paid by wire
transfer or by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer.
3.2 OFFICES FOR PAYMENTS, ETC. The Issuer will maintain in the
Borough of Manhattan, The City of New York, an agency where the Registered
Securities of each series may be presented for payment, an agency where the
Securities of each series may be presented for exchange as is provided in this
Indenture and, if applicable, pursuant to Section 2.3 an agency where the
Registered Securities of each series may be presented for registration of
transfer as in this Indenture provided.
The Issuer will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of such series are listed) where the Unregistered Securities, if any,
of each series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining
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thereto which are payable in Dollars may be made at an agency of the Issuer
maintained in the Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the United States for
payment on such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of
New York, an agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee written notice of the location
of each such agency and of any change of location thereof. In case the Issuer
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series and Coupons appertaining thereto may
be presented for payment, where the Securities of that series may be presented
for exchange as provided in this Indenture and where the Registered Securities
of that series may be presented for registration of transfer as in this
Indenture provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain the agencies provided for in the immediately
preceding paragraphs. The Issuer will give to the Trustee prompt written notice
of any such designation or rescission thereof.
3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
3.4 PAYING AGENTS. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section that such paying agent,
(a) will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto,
or of the Trustee, until such sums shall be paid to such holders or
otherwise disposed of as herein provided;
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(b) will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such Series
when the same shall be due and payable, and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of its action or
any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid, or by Issuer Order direct any paying agent to
pay to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
3.5 WRITTEN STATEMENT TO TRUSTEE. The Issuer will deliver to the
Trustee annually, commencing June 15, 1996, a certificate, from its principal
executive officer, principal financial officer or principal accounting officer,
stating whether or not to the best knowledge of the signer thereof the Issuer is
in compliance (without regard to periods of grace or notice requirements) with
all conditions and covenants under this Indenture, and if the Issuer shall not
be in compliance, specifying such non-compliance and the nature and status
thereof of which such signer may have knowledge.
3.6 LUXEMBOURG PUBLICATIONS. In the event of the publication of any
notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the
party making such publication in the Borough of Manhattan, The City of New York
and London shall also, to the extent that notice is required to be given to
Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
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3.7 CERTAIN COVENANTS APPLICABLE TO THE SECURITIES; LIMITATIONS ON
LIENS. The Issuer covenants in this Indenture that it will not, and will not
permit any Subsidiary to, issue, incur, create, assume or guarantee any debt for
borrowed money (including all obligations evidenced by bonds, debentures, notes
or similar instruments) secured by a mortgage, security interest, pledge, lien,
charge or other encumbrance ("mortgage") upon any Principal Property or upon any
shares of stock or indebtedness of any Subsidiary that owns or leases a
Principal Property (whether such Principal Property, shares or indebtedness are
now existing or owed or hereafter created or acquired) without in any such case
effectively providing concurrently with the issuance, incurrence, creation,
assumption or guaranty of any such secured debt, or the grant of such mortgage,
that the Securities (together with, if the Issuer shall so determine, any other
indebtedness of or guarantee by the Issuer or such Subsidiary ranking equally
with the Securities) shall be secured equally and ratably with (or, at the
option of the Issuer, prior to) such secured debt. The foregoing restriction,
however, will not apply to each of the following: (a) mortgages on property,
shares of stock or indebtedness or other assets of any corporation existing at
the time such corporation becomes a Subsidiary, provided that such mortgages or
liens are not incurred in anticipation of such corporation's becoming a
Subsidiary; (b) mortgages on property, shares of stock or indebtedness or other
assets existing at the time of acquisition thereof by the Issuer or a Subsidiary
or to secure the payment of all or any part of the purchase price thereof, or
mortgages on property, shares of stock or indebtedness or other assets to secure
any debt incurred prior to, at the time of, or within 180 days after, the latest
of the acquisition thereof or, in the case of property, the completion of
construction, the completion of improvements or the commencement of substantial
commercial operation of such property for the purpose of financing all or any
part of the purchase price thereof, such construction or the making of such
improvements; (c) mortgages to secure indebtedness owing to the Issuer or to a
Subsidiary; (d) mortgages existing at the date of the initial issuance of any
Securities then outstanding; (e) mortgages on property of a Person existing at
the time such Person is merged into or consolidated with the Issuer or a
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a Person as an entirety or substantially as an entirety to the
Issuer or a Subsidiary provided that such mortgage was not incurred in
anticipation of such merger or consolidation or sale, lease or other
disposition; (f) mortgages in favor of the United States of America or any
state, territory or possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision of the United
States of America or any state, territory or possession thereof (or the District
of Columbia), to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of constructing
or improving the property subject to such mortgages; or (g) extensions, renewals
or replacements of any mortgage referred to in the foregoing clauses (a), (b),
(d), (e) or (f); PROVIDED, HOWEVER, that the principal amount of indebtedness
secured thereby shall not exceed the principal amount of indebtedness so secured
at the time of such extension, renewal or replacement. Any mortgages permitted
by any of the foregoing clauses (a) through (g) shall not extend to or cover any
Principal Property of the Issuer or such Subsidiary or shares of stock or
indebtedness of such Subsidiary, as the case may be, other than the property,
including improvements thereto, stock or indebtedness specified in such clauses.
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Notwithstanding the restrictions outlined in the preceding
paragraph, the Issuer or any Subsidiary will be permitted to issue, incur,
create, assume or guarantee debt secured by a mortgage which would otherwise be
subject to such restrictions, without equally and ratably securing the
Securities, provided that after giving effect thereto, the aggregate amount of
all debt so secured by mortgages (not including mortgages permitted under
clauses (a) through (g) above) does not exceed 20% of the Consolidated Net
Tangible Assets of the Issuer.
3.8 LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The Issuer
covenants that it will not, nor will it permit any Subsidiary to, enter into any
Sale and Lease-Back Transaction with respect to any Principal Property, other
than any such transaction involving a lease for a term of not more than three
years or any such transaction between the Issuer and a Subsidiary or between
Subsidiaries, unless: (a) the Issuer or such Subsidiary would be entitled to
incur indebtedness secured by a mortgage on the Principal Property involved in
such transaction at least equal in amount to the Attributable Debt with respect
to such Sale and Lease-Back Transaction, without equally and ratably securing
the Securities, pursuant to the limitation on liens described above; or (b) the
proceeds of such transaction are at least equal to the fair market value of the
affected Principal Property (as determined in good faith by the Board of
Directors of the Issuer) and the Issuer applies an amount equal to the greater
of the net proceeds of such sale or the Attributable Debt with respect to such
Sale and Lease-Back Transaction within 180 days of such sale to either (or a
combination of) (i) the retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of debt
for borrowed money of the Issuer or a Subsidiary (other than debt that is
subordinated to the Securities or debt to the Issuer or a subsidiary) that
matures more than 12 months after its creation of such debt or (ii) the
purchase, construction or development of other comparable property.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE ISSUER AND THE TRUSTEE
4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES
OF SECURITYHOLDERS. If and so long as the Trustee shall not be the Security
registrar for the Securities of any series, the Issuer and any other obligor on
the Securities will furnish or cause to be furnished to the Trustee a list in
such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of such series pursuant to Section 312
of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after
each record date for the payment of interest on such Registered Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered Securities in each
year, and (b) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished.
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4.2 REPORTS BY THE ISSUER. The Issuer covenants to file with the
Trustee, within 15 days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
or pursuant to Section 314 of the Trust Indenture Act of 1939.
4.3 REPORTS BY THE TRUSTEE. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before January 15 in each year beginning January 15, 1996, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY; WAIVER OF
DEFAULT. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon any redemption, by declaration or
otherwise; or
(c) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the Issuer
in the Securities of such series (other than a covenant or agreement in
respect of the Securities of such series a default in the performance or
breach of which is elsewhere in this Section specifically dealt with) or
in this Indenture contained for a period of 90 days after the date on
which written notice specifying such failure, stating that such notice is
a "Notice of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail, return
receipt requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of all series affected thereby; or
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(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(e) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law or consent to the appointment or taking possession
by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its
property, or make any general assignment for the benefit of creditors; or
(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the form
of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (f) (if
the Event of Default under clause (c) or (f), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (f) (if the Event of Default under
clause (c) or (f), as the case may be, is with respect to all series of
Securities then Outstanding), occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
securities are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default specified in Section 5.1(d) or (e) occurs,
the principal of and accrued interest on the Securities shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholder.
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The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or Yields
to Maturity of all the Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of a
majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such
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series the whole amount that then shall have become due and payable on all
Securities of such series, and such Coupons, for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and on overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in 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 reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor upon the
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon the Securities, wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law, or in case a receiver, liquidator, assignee, custodian, or
trustee, sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor, or in case of
any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities 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
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of such series) owing and unpaid in
respect of the Securities of any series, 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 reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of gross negligence or bad faith)
and of the Securityholders allowed in any judicial proceedings relative to
the Issuer or
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other obligor upon the Securities, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of gross negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities and Coupons appertaining to such Securities in respect to
which such action was taken, and it shall not be necessary to make any Holders
of such Securities or Coupons appertaining to such Securities parties to any
such proceedings.
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5.3 APPLICATION OF PROCEEDS. Any moneys collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee and their respective agents and attorneys except as a result of
gross negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest (with interest, to the extent that such interest has been
collected by the Trustee, upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference);
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such principal and interest, without
preference or priority of principal over interest, or of interest over
principal, or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of
such series, ratably to the aggregate of such principal and accrued and
unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has occurred,
has not been waived and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee
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shall deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In case the
Trustee or any Securityholder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been finally determined adversely to the Trustee
or such Securityholder, then and in every such case subject to any determination
in such proceedings, the Issuer and the Trustee or such Securityholder shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar official or for any other remedy hereunder, unless (i) such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided; (ii) the Holders of not less than
25% in aggregate principal amount of the Securities of such series then
Outstanding (treated as a single class) shall have made written request upon the
Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby; (iii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding; and (iv) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons appertaining to such
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities or Coupons appertaining to such Securities,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of any applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDER TO INSTITUTE CERTAIN
SUITS. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on such Security or coupon on or after
the respective due dates expressed in such Security or
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Coupon, or to institute suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT. Except as provided in Section 5.6, 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.
No delay or omission of the Trustee or of any Holder of Securities
or Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with all
such series voting as a single class) at the time Outstanding 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 by this Indenture;
PROVIDED that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and PROVIDED FURTHER that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
5.10 WAIVER OF PAST DEFAULTS. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of
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the Securities of all series at the time Outstanding with respect to which a
default or an Event of Default shall have occurred and be continuing (voting as
a single class) may on behalf of the Holders of all such Securities waive any
past default or Event of Default described in Section 5.1 and its consequences,
except a default (a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
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.
5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES. The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Registered Securities of
such series as the names and addresses of such Holders appear upon the registry
books of the Issuer, and to other Holders of Securities of such series as have
filed their names and addresses with the Trustee within two years preceding the
giving of such notice, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on 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 or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders of
such Series.
5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any Security 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
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litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or group
of Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (f) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (f) (if
the suit under clause (c) or (f) relates to all the Securities then
outstanding), of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest or, any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; PRIOR TO DEFAULT.
With respect to the Holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of such series and after the curing or waiving of all Events of
Default which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of
all such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness
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of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was grossly negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.9 relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate or Issuer Order (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Issuer;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or
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omitting any action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and any written
advice or any opinion of counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or opinion of counsel;
(e) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;
(f) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture;
(g) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a majority
in aggregate principal amount of the Securities of all series affected
then Outstanding; PROVIDED that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition of
proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Issuer upon demand; and
(h) 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 not regularly in its employ and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES
OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons.
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The Trustee shall not be accountable for the use or application by the Issuer of
any of the Securities or of the proceeds thereof.
6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS;
ETC. The Trustee or any agent of the Issuer or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities or Coupons
with the same rights it would have if it were not the Trustee or such agent and
may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Such moneys shall be invested in accordance with
the Issuer's written instructions. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys
received by it hereunder.
6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM.
The Issuer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Issuer and the Trustee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
and all loss, liability or expense, including taxes (other than taxes based upon
or measured by the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities or Coupons, and the Securities are hereby subordinated to such senior
claim.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(d) or Section 5.1(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to
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constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, ETC. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, he deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE
TRUSTEE. As of the date hereof, the Issuer has no outstanding debt securities
issued pursuant to an indenture of which the Trustee is the trustee.
6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee for
each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. Such corporation shall have its
principal place of business or an agency in the Borough of Manhattan, The City
of New York if there is such a corporation in such location willing to act upon
reasonable and customary terms and conditions. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid 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. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all
series of Securities by giving written notice of resignation to the Issuer
and (i) if any Unregistered Securities of a series affected are then
Outstanding, by giving notice of such resignation to the Holders thereof,
by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (ii)
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if any Unregistered Securities of a series affected are then Outstanding,
by mailing notice of such resignation to the Holders thereof who have
filed their names and addresses with the Trustee within two years
preceding the giving of such notice at such addresses as were so furnished
to the Trustee and (iii) by mailing notice of such resignation to the
Holders of then Outstanding Registered Securities of each series affected
at their addresses as they shall appear on the registry books. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series
and have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and Section 310(a) of
the Trust Indenture Act of 1939 and shall fail to resign after
written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least
six months may on behalf
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of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 7.1 of
the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
(e) The Issuer shall give notice of each removal of the
Trustee (i) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at
least once in an Authorized Newspaper in The City of New York and at least
once in an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
within two years preceding the giving of such notice, by mailing such
notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the
Issuer for such purpose) and (iii) to the Holders of Registered Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books.
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations of its predecessor
hereunder with respect to such series, with like effect as if originally named
as trustee for such series hereunder; but, nevertheless, on the written request
of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all
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property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of such series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided
in this Section 6.11, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.6, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee within two years preceding
the giving of such notice, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 6.10. If the Issuer fails to give such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be given at the expense of the
Issuer.
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE. Any corporation into which the Trustee may be or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, PROVIDED that such corporation shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the
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provisions of Section 6.9, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
6.13 APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities
of a series remain Outstanding, the Trustee may, by an instrument in writing,
appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent) which shall be authorized to act on behalf of the Trustee
to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to 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 for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by Federal, State or District of Columbia
authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to
be eligible shall, resign by giving written notice of resignation to the Trustee
and to the Issuer. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof
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to such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.13 with respect to one or more series of
Securities, the Trustee shall upon receipt of an Issuer Order appoint a
successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged
to him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the
holding by any Holder of an Unregistered Security
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of any series, and the identifying number of such Security and the date of
his holding the same, may be proved by the production of such Security or
by a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any
such certificate may be issued in respect of one or more Unregistered
Securities of one or more series specified therein. The holding by the
person named in any such certificate of any Unregistered Securities of any
series specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced, or (2) the
Security of such series specified in such certificate shall be produced by
some other person, or (3) the Security of such series specified in such
certificate shall have ceased to be Outstanding. Subject to Sections 6.1
and 6.2, the fact and date of the execution of any such instrument and the
amount and numbers of Securities of any series held by the person so
executing such instrument and the amount and numbers of any Security or
Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for
such series or in any other manner which the Trustee for such series may
deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities of any series entitled to vote or
consent to any action referred to in Section 7.1, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as
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the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Security or Coupon.
7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the above
described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be
entitled to accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case
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may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
7.6 RECORD DATE FOR CONSENTS AND WAIVERS. The Issuer may, but shall
not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past default with
respect to the Securities of such series in accordance with Section 5.10, (ii)
consent to any supplemental indenture in accordance with Section 8.2 or (iii)
waive compliance with any term, condition or provision of any covenant hereunder
(if the Indenture should expressly provide for such waiver). If a record date is
fixed, the Holders on such record date, or their duly designated proxies, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 90th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The
Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any
property or assets to the Trustee as security for the Securities of one
or more series;
(b) to evidence the succession of another entity to the
Issuer, or successive successions, and the assumption by the successor of
the covenants, agreements and obligations of the Issuer pursuant to
Article IX;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein
set forth; PROVIDED, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which
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period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive such
an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provisions as the Issuer
may deem necessary or desirable, PROVIDED that no such action shall
adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS. With
the consent (evidenced as provided in Article VII) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as a
single class), the Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such
Securities; PROVIDED, that no such supplemental indenture shall
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(a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate (or alter the method of
computation) of interest thereon or extend the time for payment thereof,
or reduce (or alter the method of computation of) any amount payable on
redemption or repayment thereof or extend the time for payment thereof, or
make the principal thereof or interest thereon (including any amount in
respect of original issue discount) payable in any coin or currency other
than that provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount that would be due and payable upon an
acceleration of the maturity of any Security pursuant to Section 5.1, or
alter the provisions of Section 11.11 or 11.12 or impair or affect the
right of any Securityholder to institute suit for the payment thereof or,
if the Securities provide therefor, any right of repayment at the option
of the Securityholder, in each case without the consent of the Holder of
each Security so affected, or
(b) reduce the aforesaid percentage in principal amount of
Securities of any series, the consent of the Holders of which is required
for any such supplemental indenture, without the consent of the Holders of
each Security so affected.
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 Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the Secretary or an Assistant Secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then
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Outstanding, to the Holders thereof who have filed their names and addresses
with the Trustee within two years preceding the giving of such notice, by
mailing a notice thereof by first-class mail to such Holders at such addresses
as were so furnished to the Trustee and (iii) if any Unregistered Securities of
a series affected thereby are then Outstanding, to all Holders thereof, by
publication of a notice thereof at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), and in each case such notice shall set
forth in general terms the substance of such supplemental Indenture. Failure of
the Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 ISSUER MAY CONSOLIDATE, ETC. ON CERTAIN TERMS. Nothing contained
in this Indenture or in any of the Securities shall prevent any consolidation or
merger of the Issuer with any other corporation or corporations (whether or not
affiliated with the Issuer), or successive consolidations or mergers in which
the Issuer or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of all or substantially all the property of the
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Issuer to any other corporation (whether or not affiliated with the Issuer)
authorized to acquire and operate the same; PROVIDED, HOWEVER, that immediately
after giving effect to such transaction, no Event of Default with respect to any
series of Securities and no event which, after notice or lapse of time or both,
would become an Event of Default with respect to any series of Securities shall
have occurred and be continuing; and PROVIDED FURTHER, that upon any such
consolidation, merger, sale or conveyance, other than a consolidation or merger
in which the Issuer is the continuing corporation, the due and punctual payment
of the principal of and interest on all of the Securities and Coupons, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by the Issuer,
shall be expressly assumed, by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee by the corporation (if other
than the Issuer) formed by such consolidation, or into which the Issuer shall
have been merged, or which shall have acquired such property, and PROVIDED
FURTHER, that such corporation shall be incorporated under the laws of the
United States of America or a State of the United States of America.
9.2 SUCCESSOR ISSUER SUBSTITUTED. In case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor corporation,
by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and interest on all of the Securities and Coupons and the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Issuer, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein
as the Issuer. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder, together with any
Coupons appertaining thereto, which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions, and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities, together with any Coupons appertaining thereto,
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee, and any Securities, together with any Coupons
appertaining thereto, which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Securities so
issued, together with any Coupons appertaining thereto, shall in all respects
have the same legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and Coupons had been issued at the
date of the execution hereof.
In the event of any such consolidation, merger, sale or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
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9.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to the
provisions of Section 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(a) If at any time (i) the Issuer shall have paid or caused to
be paid the principal of and interest on all the Securities of any series
Outstanding hereunder and all Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.9) as and when the same shall have become due and payable, or
(ii) the Issuer shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated and all Coupons
appertaining thereto (other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.9) or
(iii) in the case of any series of Securities where the exact amount
(including the currency of payment) of principal of and interest due on
such Securities can be determined at the time of making the deposit
referred to in clause (B) below, (A) all the Securities of such series and
all Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms
to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (B) the Issuer shall have
irrevocably deposited or caused to be irrevocably deposited with the
Trustee 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 the Securities of such series and Coupons
appertaining thereto, (x) cash in an amount, or (y) in the case of any
series of Securities the payments on which may only be made in Dollars,
direct obligations of the United States of America, backed by its full
faith and credit ("U.S. Government Obligations"), maturing as to principal
and interest at such times and in such amounts as will insure the
availability of cash in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay the principal and interest on all Securities of
such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable (whether at maturity or upon
redemption (through operation of a mandatory sinking fund or otherwise)
other than any redemption at the option of the Holder); and if, in any
such case, the Issuer shall also pay or cause to be paid all other sums
payable
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hereunder by the Issuer, then all of the Securities of such series and any
Coupons appertaining thereto shall be deemed paid and discharged and the
provisions of this Indenture with respect to such Securities and Coupons
shall cease to be of further effect (except as to (1) rights of
registration of transfer, exchange of Securities of such series and of
Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (2) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (3) rights of Holders of Securities
and Coupons appertaining thereto to receive payments of principal thereof
and interest thereon, upon the stated due dates therefor (whether at
maturity or upon redemption (through operation of a mandatory sinking fund
or otherwise) other than any redemption at the option of the Holder) (but
not upon acceleration), (4) the rights, obligations, duties and immunities
of the Trustee hereunder, (5) the rights of the Holders of Securities of
such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or
any of them, and (6) the obligations of the Issuer under Section 3.2) and
the Trustee, on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel which complies with Section 11.5 and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(b) In addition to discharge of the Indenture pursuant to the
next preceding paragraph, in the case of any series of Securities where
the exact amounts (including the currency of payment) of principal of and
interest due on such Securities can be determined at the time of making
the deposit referred to in clause (A) below, on the 91st day after the
date of such deposit all the Securities of such a series and any Coupons
appertaining thereto shall be deemed paid and discharged and the
provisions of this Indenture with respect to the Securities and Coupons
shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series and of
Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the stated due dates therefor
(whether at maturity or upon redemption (through operation of a mandatory
sinking fund or otherwise) other than any redemption at the option of the
Holder) (but not upon acceleration), (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the Issuer,
shall at the Issuer's request, execute proper instruments acknowledging
the same, if
(A) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for
the purpose of
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making the following payments, specifically pledged as security for
and dedicated solely to the benefit of the Holders of the Securities
of such series and Coupons appertaining thereto, (1) cash in an
amount, or (2) in the case of any series of Securities the payments
on which may only be made in Dollars, U.S. Government Obligations,
maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash in an amount or (3)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is
due and payable (whether at maturity or upon mandatory redemption
(through operation of a mandatory sinking fund or otherwise) other
than any redemption at the option of the Holder);
(B) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect
to the Securities shall have occurred and be continuing on the date
of such deposit or, insofar as subsections 5.1(d) and (e) 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);
(C) such deposit and discharge will not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Issuer is a party or by which
it is bound;
(D) such deposit and discharge shall not cause the
Trustee to have a conflicting interest as defined in Section 310(b)
of the Trust Indenture Act of 1939;
(E) such deposit and discharge shall not cause any
Securities then listed on any registered national securities
exchange to be delisted;
(F) the Issuer shall have delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Issuer has
received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a
change in the applicable Federal income tax law, in either case to
the effect that, and such opinion shall confirm that, the Holders of
the Securities of such series and Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit
and discharge had not occurred; and
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(G) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent relating to the deposit and discharge
contemplated by this provision have been complied with.
(c) The Issuer shall be released from its obligations under
Sections 3.7, 3.8 and 9.1 and any other covenants specified pursuant to
Section 2.3 with respect to the Securities of any series and any Coupons
appertaining thereto on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities
of the applicable series, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set
forth in such Section or any such covenant, whether directly or indirectly
by reason of any reference elsewhere herein to such Section or any such
covenant or by reason of any reference in such Section or any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section
5.1, but the remainder of this Indenture and such Securities and Coupons
shall be unaffected thereby. The following shall be the conditions to
application of this subsection (c) of this Section 10.1:
(i) The Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee 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 the Securities of such series and Coupons appertaining thereto,
(A) cash in an amount, or (B) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash in
an amount or (C) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal and interest on all Securities of such
series and Coupons appertaining thereto on each date that such
principal or interest is due and payable (whether at maturity or
upon redemption (through operation of a mandatory sinking fund or
otherwise) other than any redemption at the option of the Holder).
(ii) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect
to the Securities shall have occurred and be continuing on the date
of such deposit or, insofar as subsections 5.1(d) and (e) 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).
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(iii) Such covenant defeasance will not result in a
breach or violation of, or constitute a default under, any agreement
or instrument to which the Issuer is a party or by which it is
bound.
(iv) Such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 310(b)
of the Trust Indenture Act of 1939.
(v) Such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be delisted.
(vi) The Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the Securities
of such series and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred.
(vii) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent relating to the covenant defeasance
contemplated by this provision have been complied with.
10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 10.4, all moneys and Securities deposited with
the Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the
payment or redemption of which such moneys or Securities have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys or Securities need not be segregated from other funds
except to the extent required by law.
10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR
TWO YEARS. Any moneys deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any Security of any series or
Coupons attached thereto and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and
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unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the Security register, and (b) in respect of Unregistered Securities
of any series, shall at the expense of the Issuer cause to be published once, in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and
once in an Authorized Newspaper in London (and if required by Section 3.6, once
in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.
10.5 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.1 or the principal or interest received in respect of such obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER
EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND
HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the Securities
or in the Coupons appertaining thereto, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto and their
successors and the Holders of the Securities or Coupons, if any, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
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provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the
Securities or Coupons, if any.
11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Sysco Corporation, 1390 Enclave
Parkway, Houston, Texas 77077-2099, Attention: Vice President, Finance. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
or Coupons to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to First Union National Bank of
North Carolina, 230 S. Tryon Street, 8th Floor, Charlotte, North Carolina 28288,
Attention: Corporate Trust Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of Unregistered
Securities who have filed their names and addresses within two years preceding
the giving of such notice, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in such filing. Notice to other Unregistered Securities shall be by
publication as provided in Section 6.10(a)(i). In any case where notice to such
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
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11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters where the information is in the possession of the
issuer, upon the certificate, statement or opinion of or representations by an
officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
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11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date of
maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT
OF 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
(an "incorporated provision"), such incorporated provision shall control.
11.8 NEW YORK LAW TO GOVERN. This Indenture and each Security and
Coupon shall be deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
State, except as may otherwise be required by mandatory provisions of law.
11.9 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
11.10 EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
11.11 SECURITIES IN A FOREIGN CURRENCY OR IN ECU. Unless otherwise
specified in an Officer's Certificate delivered pursuant to Section 2.3 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding Securities of any series which are denominated in a
coin or currency other than Dollars (including ECUs), then the principal amount
of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 11.11, Market Exchange Rate shall mean the noon Dollar buying rate in
New York City for cable transfers of that currency published by the Federal
Reserve Bank of New York; PROVIDED, HOWEVER, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European Communities (or any successor thereto) as published in the Official
Journal of the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York
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or in the country of issue of the currency in question, which for purposes of
the ECU shall be Brussels, Belgium, or such other quotations or, in the case of
ECU, rates of exchange as the Trustee shall deem appropriate. The provisions of
this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
11.12 JUDGMENT CURRENCY. The Issuer agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 APPLICABILITY OF ARTICLE. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their
maturity (pursuant to operation
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of any sinking fund or otherwise) except as otherwise specified, as contemplated
by Section 2.3, for Securities of such series.
12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of redemption
to the Holders of Registered Securities of any series to be redeemed as a whole
or in part other than at the option of the Holder shall be given by mailing
notice of such redemption by first-class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
at their last addresses as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the Trustee within two
years preceding the giving of such notice, shall be given by mailing notice of
such redemption, by first-class mail, postage prepaid, at least 30 days and not
more than 60 prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Issuer, the Trustee shall make such information available to
the Issuer for such purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.6, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of the same
series, of like tenor and in an aggregate principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
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On or before the redemption date specified in the notice of
redemption given as provided in this section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all Outstanding Securities of any series are to be redeemed, the Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officer's Certificate stating the aggregate principal amount of
Securities of such series to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officer's
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples of the minimum authorized denomination for
Securities of such series. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series 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 of any series 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.
12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and 10.4, such Securities shall cease
from and after the close of business on the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of the same series, in authorized denominations, of like tenor and in
an aggregate principal amount equal to the unredeemed portion of the Security so
presented.
12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION
FOR REDEMPTION. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any
sinking fund payment provided for by the terms of the 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 the Securities of any
series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, and
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series.
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On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series to be so credited have previously been so credited, (c) stating that
no defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officer's
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officer's Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver such Officer's Certificate and Securities (subject to
the parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU)
if the Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redelegation price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign currency or ECU) or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall select,
in the manner provided in Section 12.2 and subject to the limitations in Section
12.4, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so
selected. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 12.2 (and with the effect provided in Section 12.3)
for the
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redemption of Securities of such series in part. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, PROVIDED that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
IN WITNESS WHEREOF the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of June 15, 1995.
SYSCO CORPORATION
By:
------------------------------
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, TRUSTEE
By:
------------------------------
Title:
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<PAGE>
EXHIBIT 4(b)
DRAFT OF JUNE 5, 1995
SYSCO CORPORATION
AND
_________________________, TRUSTEE
SUBORDINATED DEBT INDENTURE
DATED AS OF ____________, 1995
<PAGE>
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS.............................................. 1
1.1 Certain Terms Defined.................................... 1
ARTICLE II - SECURITIES.............................................. 7
2.1 Forms Generally.......................................... 7
2.2 Form of Trustee's Certificate of Authentication.......... 8
2.3 Amount Unlimited; Issuable in Series..................... 8
2.4 Authentication and Delivery of Securities................ 11
2.5 Execution of Securities.................................. 14
2.6 Certificate of Authentication............................ 15
2.7 Denomination and Date of Securities; Payments of
Interest................................................. 15
2.8 Registration, Transfer and Exchange...................... 16
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities............................................... 19
2.10 Cancellation of Securities; Destruction Thereof.......... 20
2.11 Temporary Securities..................................... 20
2.12 CUSIP Numbers............................................ 21
ARTICLE III - COVENANTS OF THE ISSUER................................ 21
3.1 Payment of Principal and Interest........................ 21
3.2 Offices for Payments, etc................................ 22
3.3 Appointment to Fill a Vacancy in Office of Trustee....... 23
3.4 Paying Agents............................................ 23
3.5 Written Statement to Trustee............................. 24
3.6 Luxembourg Publications.................................. 24
ARTICLE IV - SECURITY HOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE................................................ 24
4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders............................. 24
4.2 Reports by the Issuer.................................... 24
4.3 Reports by the Trustee................................... 25
ARTICLE V - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS.............. 25
5.1 Event of Default Defined: Acceleration of Maturity;
Waiver of Default........................................ 25
5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt............................................... 27
5.3 Application of Proceeds.................................. 30
5.4 Suits for Enforcement.................................... 31
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5.5 Restoration of Rights on Abandonment of Proceedings...... 31
5.6 Limitations on Suits by Securityholders.................. 31
5.7 Unconditional Right of Securityholders to Institute
Certain Suits............................................ 32
5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default........................................ 32
5.9 Control by Holders of Securities......................... 32
5.10 Waiver of Past Defaults.................................. 33
5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances................................. 33
5.12 Right of Court to Require Filing of Undertaking to
Pay Costs................................................ 34
ARTICLE VI - CONCERNING THE TRUSTEE.................................. 34
6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default................................ 34
6.2 Certain Rights of the Trustee............................ 36
6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof......... 37
6.4 Trustee and Agents May Hold Securities or Coupons;
Collections etc.......................................... 37
6.5 Moneys Held by Trustee................................... 37
6.6 Compensation and Indemnification of Trustee and Its
Prior Claim.............................................. 37
6.7 Right of Trustee to Rely on Officers' Certificate, etc... 38
6.8 Indentures Not Creating Potential Conflicting Interests
for the Trustee.......................................... 38
6.9 Persons Eligible for Appointment as Trustee.............. 38
6.10 Resignation and Removal; Appointment of Successor Trustee 39
6.11 Acceptance of Appointment by Successor Trustee........... 41
6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee...................................... 42
6.13 Appointment of Authenticating Agent...................... 43
ARTICLE VII - CONCERNING THE SECURITYHOLDERS......................... 44
7.1 Evidence of Action Taken by Securityholders.............. 44
7.2 Proof of Execution of Instruments and of Holding of
Securities............................................... 44
7.3 Holders to be Treated as Owners.......................... 45
7.4 Securities Owned by Issuer Deemed Not Outstanding........ 46
7.5 Right of Revocation of Action Taken...................... 46
7.6 Record Date for Consents and Waivers..................... 47
ARTICLE VIII - SUPPLEMENTAL INDENTURES............................... 47
8.1 Supplemental Indentures Without Consent of Security
holders.................................................. 47
8.2 Supplemental Indentures With Consent of Securityholders.. 48
8.3 Effect of Supplemental Indenture......................... 50
8.4 Documents to Be Given to Trustee......................... 50
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8.5 Notation on Securities in Respect of Supplemental
Indentures............................................... 50
8.6 Effect on Senior Indebtedness............................ 50
ARTICLE IX - CONSOLIDATION, MERGER, SALE OR CONVEYANCE............... 51
9.1 Issuer May Consolidate, etc., on Certain Terms........... 51
9.2 Successor Issuer Substituted............................. 51
9.3 Opinion of Counsel to Trustee............................ 52
ARTICLE X - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS............................................... 52
10.1 Satisfaction and Discharge of Indenture.................. 52
10.2 Application by Trustee of Funds Deposited for Payment
of Securities............................................ 57
10.3 Repayment of Moneys Held by Paying Agent................. 57
10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years.................................. 57
10.5 Indemnity for U.S. Government Obligations................ 57
ARTICLE XI - MISCELLANEOUS PROVISIONS................................ 58
11.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability............... 58
11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons............ 58
11.3 Successors and Assigns of Issuer Bound by Indenture...... 58
11.4 Notices and Demands on Issuer, Trustee and Holders
of Securities and Coupons................................ 58
11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein....................... 59
11.6 Payments Due on Saturdays, Sundays and Holidays.......... 60
11.7 Conflict of Any Provision of Indenture With Trust
Indenture Act of 1939.................................... 60
11.8 New York Law to Govern................................... 60
11.9 Counterparts............................................. 61
11.10 Effect of Headings....................................... 61
11.11 Securities in a Foreign Currency or in ECU............... 61
11.12 Judgment Currency........................................ 61
ARTICLE XII - REDEMPTION OF SECURITIES AND SINKING FUNDS............. 62
12.1 Applicability of Article................................. 62
12.2 Notice of Redemption: Partial Redemptions................ 62
12.3 Payment of Securities Called for Redemption.............. 64
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12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption............................. 65
12.5 Mandatory and Optional Sinking Funds..................... 65
ARTICLE XIII - SUBORDINATION OF SECURITIES........................... 67
13.1 Agreement to Subordinate................................. 67
13.2 No Payment on Securities if Senior Indebtedness
in Default............................................... 67
13.3 Priority of Senior Indebtedness.......................... 68
13.4 Reliance by Trustee and Securityholders.................. 69
13.5 Subrogation of Securities................................ 69
13.6 Issuer Obligation to Pay Unconditional................... 70
13.7 Authorization of Holders of Securities to Trustee
to Effect Subordination.................................. 70
13.8 Notice to Trustee of Facts Prohibiting Payments.......... 70
13.9 Trustee May Hold Senior Indebtedness..................... 71
13.10 All Indenture Provisions Subject to this Article......... 71
13.11 Subordination Rights Not Impaired by Acts or Omissions
of the Issuer or holders of Senior Indebtedness.......... 71
-iv-
THIS SUBORDINATED DEBT INDENTURE, dated as of June , 1995 between
SYSCO CORPORATION, a Delaware corporation (the "Issuer"), and ________________,
a ____________________________ banking corporation, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN TERMS DEFINED. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939 or are defined
therein by reference to the Securities Act of 1933 (except as herein otherwise
expressly provided or unless the context otherwise require), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means such accounting principles as
are generally accepted at the time of any computation. 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. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
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"AUTHENTICATING AGENT" shall have the meaning set forth in Section
6.13.
"AUTHORIZED NEWSPAPER" means a newspaper (which, in the case of The
City of New York, will, if practicable, be THE WALL STREET JOURNAL (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
FINANCIAL TIMES (London Edition) and, in the case of Luxembourg, will, if
practicable, be the LUXEMBURGER WORT) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"BOARD OF DIRECTORS" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in
the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is neither a Saturday,
Sunday or a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery 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 on such date.
"COMPOSITE RATE" means, at any time, the rate of interest, per anum,
compounded semiannually, equal to the sum of the rates of interest borne by each
of the Securities Outstanding hereunder (as specified on the face of each of the
Securities, PROVIDED, that, in the case of the Securities with variable rates of
interest, the interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the beginning of the year
in which the Composite Rate is being determined and, PROVIDED, further, that, in
the case of Securities which do not bear interest, the interest rate to be used
in calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Securities, calculated at the time of issuance of such Securities)
multiplied, in the case of each of the Securities, by the percentage of the
aggregate principal amount of all of the Securities then Outstanding represented
by such Security. For the purposes of this calculation, the aggregate principal
amounts of Outstanding Securities that are denominated in a foreign currency,
shall be calculated in the manner set forth in Section 11.11.
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"CORPORATE TRUST OFFICE" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in the borough of Manhattan, The City of New York.
"COUPON" means any interest coupon appertaining to a Security.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"DOLLAR" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.1.
"FOREIGN CURRENCY" means a currency issued by the government of a
country other than the United States.
"HOLDER", "HOLDER OF SECURITIES", "SECURITY HOLDER" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.1.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"INTEREST" shall include interest payable after maturity and any
additional amount payable in connection with the applicable Securities.
"ISSUER" means Sysco Corporation, a Delaware corporation and,
subject to Article IX, its successors and assigns.
-3-
"ISSUER ORDER" means a written statement, request or order of the
Issuer signed in its name by the Chairman or Vice Chairman of the Board of
Directors, the President, any Vice President or the Treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section
11.12.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman
or Vice Chairman of the Board of Directors, the President or any Vice President
or the Treasurer of the Issuer and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by the
General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act of 1939 and include the statements provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that 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 5.1.
"OUTSTANDING" when used with reference to Securities, shall, subject
to the provisions of section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations in the necessary
amount (as provided for in Section 10.1) shall have been deposited in
trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the
-4-
Trustee is presented that such Security is held by a Person in whose hands
such Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"RECORD DATE" shall have the meaning set forth in Section 2.7.
"REGISTERED GLOBAL SECURITY", means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section
11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means
the Chairman of the board of directors, any Vice Chairman of the board of
directors, the Chairman of the Trust Committee, the Chairman of the Executive
Committee, any Vice Chairman of the Executive Committee, the President, any Vice
President, (whether or not designated by numbers or words added before or after
the title "Vice President"), the Cashier, the Secretary, the Treasurer, any
Trust Officer, any Assistant Trust Officer, any Assistant Vice President, any
Assistant Cashier, any Assistant Secretary, any Assistant Treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
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"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"SENIOR INDEBTEDNESS" means (a) all indebtedness and obligations of
the Issuer existing on the date hereof or created, incurred or assumed after the
date of the initial issuance of Securities under this Indenture, and which (i)
are for money borrowed; (ii) are evidenced by any bond, note, debenture or
similar instrument; (iii) represent the unpaid balance on the purchase price of
property or services of any kind; (iv) are obligations as lessee under any and
all leases of property, equipment or other assets required to be capitalized on
the balance sheet of the lessee under generally accepted accounting principles;
(v) are reimbursement obligations with respect to letters of credit or other
similar instruments; (vi) are obligations under interest rate, currency or other
indexed exchange agreements, agreements for caps or floors on interest rates,
foreign exchange agreements or any other similar agreements; (vii) are
obligations under any guaranty, endorsement or other contingent obligations in
respect of, or to purchase or otherwise acquire, indebtedness or obligations of
other Persons of the types referred to in clauses (i) through (vi) above (other
than endorsements for collection or deposit in the ordinary course of business);
or (viii) are obligations of others secured by a lien to which any of the
properties or assets of the Issuer are subject, whether or not the obligations
secured thereby shall have been issued by the Issuer or shall otherwise be the
legal liability of the Issuer, and (b) any deferrals, renewals, amendments,
modifications, refundings or extensions of any such indebtedness or obligations
of the types referred to above; notwithstanding the foregoing, Senior
Indebtedness shall not include (1) any indebtedness of the Issuer to any of its
Subsidiaries, (2) any indebtedness or obligation of the Issuer which by its
express terms is stated to be not superior in right of payment to the Securities
or to rank PARI PASSU with the Securities, or (3) any indebtedness or obligation
incurred by the Issuer in connection with the purchase of any property or
services in the ordinary course of business and which constitutes a trade
payable or account payable.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock of the Issuer or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are at the time
directly or indirectly owned by such Person.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee", in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
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"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 10.1(A).
"YIELD TO MATURITY" means the yield to maturity (i) on a series of
Securities or (ii) if the Securities of a series are issuable from time to time,
on a Security of such series, calculated at the time of issuance of such series
in the case of clause (i) or at the time of issuance of such Security of such
series in the case of clause (ii), or, if applicable, at the most recent
redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial
practice as is specified in the terms of such security.
ARTICLE II
SECURITIES
2.1 FORMS GENERALLY. The Securities of each series and the Coupons,
if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (and to the extent established pursuant to rather than
set forth in a Board Resolution, in an Officer's Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
Date:
"This is one of the Securities referred to in the within-mentioned
Indenture.
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-------------------------------
as Trustee
By
-------------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Authenticating Agent's Certificate
of Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
-------------------------------,
as Authenticating Agent
By
-------------------------------
Authorized Officer"
2.3 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 and each such
series shall be subordinated to Senior Indebtedness of the Issuer in accordance
with the provisions of Article XIII. Each series of Securities issued hereunder
will be PARI PASSU with all other series of Securities issued hereunder. There
shall be established by or pursuant to one or more Board Resolutions (and to the
extent established pursuant to rather than set forth in a Board Resolution, in
an Officer's Certificate detailing such establishment) or in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of all
other series and shall in each case include in such designation the term
"subordinated";
(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 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency or units
thereof in which the Securities of that series are denominated (including,
but not limited to, any Foreign Currency or ECU);
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(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
(6) the method by which amounts payable in respect of
principal, premium, if any, or interest, if any, on such Securities may be
calculated, and any currencies, commodities or indices, or value, rate or
price, relevant to such calculation;
(7) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(8) the right, if any, of the Issuer to redeem or cause to be
redeemed Securities of the series, in whole or in part, at its option and
the period or periods within which, the price or prices (and/or method by
which such price or prices shall be determined) at which and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article XII hereof), Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series, in whole or in part, pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices (and/or the method by
which such price or prices shall be determined) at which, the period or
periods within which and any terms and conditions upon which and the
manner in which (if different from the provisions of Article XII hereof)
Securities of the series shall be redeemed, purchased or repaid pursuant
to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(12) if other than the coin or currency or units thereof in
which the Securities of that series are denominated, the coin or currency
or units thereof in which payment of the principal of or interest on the
Securities of such series shall be payable;
-9-
(13) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency or units thereof other than that in which
the Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of and/or interest
on the Securities of the series may be determined with reference to the
value or price of any one or more commodities, currencies or indices, the
manner in which such amounts will be determined;
(15) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon and, if other than as provided in Section
2.8, the terms upon which Unregistered Securities of any series may be
exchanged for Registered Securities of such series and vice versa;
(16) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person who is
not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option
to redeem such Securities rather than pay such additional amounts;
(17) 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, the
form and terms of such certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect to
the Securities of such series;
(19) any other events of default or covenants not set forth
herein with respect to the Securities of such series;
(20) the term and conditions upon which and the manner in
which Securities of the series may be defeased or discharged if different
from the provisions set forth under the defeasance provision herein;
(21) offices at which presentations and demands may be made
and notices may be served, if other than the Corporate Trust Office of the
Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant
to such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by an Issuer Order. The maturity date, original issue date,
interest rate and any other terms of the Securities of such series and Coupons,
if any, appertaining thereto shall be determined by or pursuant to such Issuer
Order and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent, which instructions
shall be promptly confirmed in writing. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs 2, 3 and 4 below only at or before the time of the first request
of the Issuer to the Trustee to authenticate Securities of such series) and
(subject to Section 6.1) shall be fully protected in relying upon, unless and
until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not
to be delivered to the Issuer, provided that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c) the
maturity date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be determined
by an Issuer Order or pursuant to such procedures and (d) if provided for
in such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Issuer or
its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons, if
any, were established;
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(3) an Officer's Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form or
forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may reasonably
request; and
(4) At the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting to it rely on an Opinion
of Counsel, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the
provisions of this Indenture;
(b) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered to
and paid for by the purchasers thereof, they will be entitled to the
benefits of this Indenture, will have been duly issued under this
Indenture and will be valid and binding obligations of the Issuer,
enforceable in accordance with their respective terms; and
(c) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities
and Coupons, if any, will not contravene any provision of the
certificate of incorporation or by-laws of the Issuer or any
agreement or other instrument binding upon the Issuer or, to the
best of such Counsel's knowledge, but without any independent
investigation, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Issuer, and no
consent, approval or authorization of any governmental body or
agency is required for the performance by the Issuer of its
obligations under the Securities and Coupons, if any, except such as
are specified and have been obtained and such as may be required by
the securities or blue sky laws of the various states in connection
with the offer and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters except those governed by the federal law of the United States, upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion
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involves factual matters, he has relied, to the extent he deems proper, upon
certificates of officers of the Issuer and its subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all or a portion of the Securities of such series issued and not yet
cancelled or exchanged, (ii) shall be registered in the name of the Depositary
for such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable law or regulation.
2.5 EXECUTION OF SECURITIES. The Securities and, if applicable, each
Coupon appertaining thereto shall be signed on behalf of the Issuer by the
Chairman or Vice Chairman of its Board of Directors or its President, any Vice
President or its Treasurer, under its corporate seal (except in the case of
Coupons) which may, but need not, be attested. Such signatures may be the manual
or facsimile signatures of the present or any future such officers. The seal of
the issuer may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated
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and delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
2.6 CERTIFICATE OF AUTHENTICATION. Except as provided in Section
6.13 hereof, only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized officers, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of this Indenture or shall
be valid and obligatory for any purpose until the certificate of authentication
on the Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF INTEREST. The
Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations as shall be specified pursuant to
Section 2.3 or, with respect to the Registered Securities of any series, if not
so established, in denominations of $1,000 and any integral multiple thereof. If
denominations of unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as specified pursuant
to section 2.3. The Securities of each series shall bear interest, if any, from
the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to such series
with respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security subsequent
to the record date and prior to such interest payment date, except in the case
of any such transfer or exchange if and to the extent the Issuer shall default
in the payment of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any
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interest payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series, or, if no such date is so specified,
if such interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, of like
tenor, in authorized denominations for a like aggregate principal amount.
Unregistered securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged
as provided below for a Security of the same series, in authorized
denominations, of like tenor and in an equal aggregate principal amount upon
surrender of such Security at an office or agency to be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3,
and the Issuer shall execute, and the Trustee shall authenticate and deliver in
exchange therefor, the Security or Securities which the Holder making the
exchange shall be entitled to receive bearing a number or other distinguishing
symbol not contemporaneously outstanding. Subject to the foregoing, (i) a
Registered Security of any series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered Security or
Securities of the same series; (ii) if the Securities of any Series are issued
in both registered and unregistered form, except as otherwise specified pursuant
to Section 2.3, an Unregistered Security may be exchanged for a Registered
Security or Securities of the same series, but a Registered Security may not be
exchanged for an Unregistered Security or Securities; and (iii) if Unregistered
Securities of any series are issued in more than one authorized denomination,
except as otherwise specified pursuant to Section 2.3, any such Unregistered
Security may be exchanged for an Unregistered Security or Securities of the same
series; PROVIDED that in connection with the surrender of any Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default must be surrendered with the Securities being exchanged.
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All Registered Securities presented for registration of transfer,
exchange, redemption, repurchase or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4 for
such Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form without Coupons, in any authorized
denominations, of like tenor, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
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delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without Coupons, in any
authorized denominations, of like tenor, in an aggregate principal amount equal
to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any authorized
denominations as requested by such Person, of like tenor, in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, of like tenor, in authorized
denominations, such Registered Global Security shall be cancelled by the Trustee
or an Agent of the Issuer or the Trustee. Securities in definitive registered
form without Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for any outstanding Registered Security if such
exchange would result in adverse Federal income tax consequences to the Issuer
(such as, for example, the inability of the Issuer to deduct from its income, as
computed for Federal income
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tax purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws.
2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be destroyed, lost or stolen, the
Issuer in its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver a new Security
of the same series, of like tenor, bearing a number or other distinguishing
symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons appertaining
thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related Coupons to the
Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer
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) or its agent connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a
substitute Security, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen
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Securities and Coupons and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All securities
and coupons surrendered for payment, repurchase, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall destroy cancelled Securities and Coupons held by it and deliver
a certificate of destruction to the Issuer. If the Issuer or its agent shall
acquire any of the Securities or Coupons, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such Securities
or Coupons unless and until the same are delivered to the Trustee or its agent
for cancellation.
2.11 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered Securities
with or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge, in the case of Registered
Securities, at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at
any office or agency maintained by the Issuer for such purpose as specified
pursuant to Section 2.3, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations and, in the case of Unregistered Securities, having attached
thereto any appropriate Coupons. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to any restrictions or
limitations that may be established with respect to the Securities of any series
pursuant to Section 2.3 (including any provision that Unregistered Securities of
such series initially be issued in the form of a single global Unregistered
Security to be delivered to a Depositary or agency located outside the United
States and the procedures
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pursuant to which definitive or global Unregistered Securities of such series
would be issued in exchange for such temporary global Unregistered Security).
2.12 CUSIP NUMBERS. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers 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 a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such notice of
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III
COVENANTS OF THE ISSUER
3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons appertaining thereto and in this Indenture. The interest on Unregistered
Securities with Coupons attached shall be payable only upon presentation and
surrender of the Coupons evidencing the right to such installment of interest as
they severally mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary form, the
interest on any such temporary Unregistered Security shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon
of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the
Holders entitled thereto and, at the option of the Issuer, may be paid by wire
transfer or by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer.
3.2 OFFICES FOR PAYMENTS, ETC. The Issuer will maintain in the
Borough of Manhattan, The City of New York, an agency where the Registered
Securities of each series may be presented for payment, an agency where the
Securities of each series may be presented for exchange as is provided in this
Indenture and, if applicable, pursuant to Section 2.3 an agency where the
Registered Securities of each series may be presented for registration of
transfer as in this Indenture provided.
The Issuer will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under
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the rules of any stock exchange on which the Securities of such series are
listed) where the Unregistered Securities, if any, of each series and Coupons,
if any, appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made without adverse tax
consequences to the Issuer.
Notwithstanding the foregoing, payments in Dollars of Unregistered
Securities of any series and Coupons appertaining thereto which are payable in
Dollars may be made at an agency of the Issuer maintained in the Borough of
Manhattan, The City of New York if such payment in Dollars at each agency
maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of
New York, an agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee written notice of the location
of each such agency and of any change of location thereof. In case the Issuer
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series and Coupons appertaining thereto may
be presented for payment, where the Securities of that series may be presented
for exchange as provided in this Indenture and where the Registered Securities
of that series may be presented for registration of transfer as in this
Indenture provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; PROVIDED, HOWEVER,
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain the agencies provided for in the immediately
preceding paragraphs. The Issuer will give to the Trustee prompt written notice
of any such designation or rescission thereof.
3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
3.4 PAYING AGENTS. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent to
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execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section that such paying
agent,
(a) will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto,
or of the Trustee, until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(b) will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of its action or
any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid, or by Issuer Order direct any paying agent to
pay to the Trustee all sums held in trust for any such series by the Issuer or
any paying agent hereunder, as required by this Section, such sums to be held by
the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
3.5 WRITTEN STATEMENT TO TRUSTEE. The Issuer will deliver to the
Trustee annually, commencing __________ __, 1995, a certificate, from its
principal executive officer, principal financial officer or principal accounting
officer, stating whether or not to the best knowledge of the signer thereof the
Issuer is in compliance (without regard to periods of grace
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or notice requirements) with all conditions and covenants under this Indenture,
and if the Issuer shall not be in compliance, specifying such non-compliance and
the nature and status thereof of which such signer may have knowledge.
3.6 LUXEMBOURG PUBLICATIONS. In the event of the publication of any
notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4, 12.2 or 12.5, the
party making such publication in the Borough of Manhattan, The City of New York
and London shall also, to the extent that notice is required to be given to
Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
ARTICLE IV
SECURITY HOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES
OF SECURITYHOLDERS. If and so long as the Trustee shall not be the Security
registrar for the Securities of any series, the Issuer and any other obligor on
the Securities will furnish or cause to be furnished to the Trustee a list in
such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of such series pursuant to Section 312
of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after
each record date for the payment of interest on such Registered Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered Securities in each
year, and (b) at such other times as the Trustee may request in writing, within
thirty days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished.
4.2 REPORTS BY THE ISSUER. The Issuer covenants to file with the
Trustee, within 15 days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
or pursuant to Section 314 of the Trust Indenture Act of 1939.
4.3 REPORTS BY THE TRUSTEE. Any Trustee's report required under
Section 313 (a) of the Trust Indenture Act of 1939 shall be transmitted on or
before January 15 in each year beginning January 15, 1996, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
5.1 EVENT OF DEFAULT DEFINED: ACCELERATION OF MATURITY; WAIVER OF
DEFAULT. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon any redemption, by declaration or
otherwise; or
(c) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the Issuer
in respect of the Securities of such series (other than a covenant or
agreement in respect of the Securities of such series a default in the
performance or breach of which is elsewhere in this Section specifically
dealt with) or in this Indenture contained for a period of 90 days after
the date on which written notice specifying such failure, stating that
such notice is a "Notice of Default" hereunder and demanding that the
Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of all series affected
thereby; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Issuer or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(e) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors; or
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(f) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the form
of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (f) (if
the Event of Default under clause (c) or (f), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (c) or (f) (if the Event of Default under
clause (c) or (f), as the case may be, is with respect to all series of
Securities then Outstanding), occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities such portion of the principal
as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default specified in Section 5.1(d) or (e) occurs,
the principal of and accrued interest on the Securities shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of any and all Securities of each such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and on overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates of interest or Yields
to Maturity of all the Securities, as the case may be) to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except
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as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then and in every such case the Holders
of a majority in aggregate principal amount of all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults with respect to each such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in 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
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to
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institute any action or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final decree
against the Issuer or other obligor upon the Securities and collect in the
manner provided by law out of the property of the Issuer or other obligor upon
the Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency, reorganization
or other similar law, or in case a receiver, liquidator, assignee, custodian, or
trustee, sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor, or in case of
any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities 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
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of such series) owing and unpaid in
respect of the Securities of any series, 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 reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of
the Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each
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predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities and Coupons appertaining to such Securities in respect to
which such action was taken, and it shall not be necessary to make any Holders
of such Securities or Coupons appertaining to such Securities parties to any
such proceedings.
5.3 APPLICATION OF PROCEEDS. Any moneys collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee and their respective agents and attorneys except as a result of
negligence or bad faith;
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SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the
installments of such interest (with interest, to the extent that such
interest has been collected by the Trustee, upon the overdue installments
of interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the Persons entitled
thereto, without discrimination or preference);
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have become
and shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and
interest, without preference or priority of principal over interest, or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other Person lawfully entitled thereto.
5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has occurred,
has not been waived and is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In case the
Trustee or any Securityholder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been finally determined adversely to the Trustee
or such Securityholder, then and in every such case subject to any determination
in such proceedings, the Issuer and the Trustee or such Securityholder shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
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5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar official or for any other remedy hereunder, unless (i) such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided; (ii) the Holders of not less than
25% in aggregate principal amount of the Securities of such series then
Outstanding (treated as a single class) shall have made written request upon the
Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby; (iii) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding; and (iv) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder and the Trustee, that no
one or more Holders of Securities of any series or Coupons appertaining to such
Securities shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities or Coupons appertaining to such Securities,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of any applicable series and Coupons appertaining to such Securities.
For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN
SUITS. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF
DEFAULT. Except as provided in Section 5.6, 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.
No delay or omission of the Trustee or of any Holder of Securities
or Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as
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aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.6, every power and remedy given by this Indenture or by law to the
Trustee or to the Holders of Securities or coupons may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with all
such series voting as a single class) at the time Outstanding 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 by this Indenture;
PROVIDED that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and PROVIDED FURTHER that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
5.10 WAIVER OF PAST DEFAULTS. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of all series at the time
Outstanding with respect to which a default or an Event of Default shall have
occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default (a) in the
payment of principal or interest on any Security of such series or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such
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waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN
CIRCUMSTANCES. The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Registered Securities of
such series as the names and addresses of such Holders appear upon the registry
books of the Issuer, and to other Holders of securities of such series as have
filed their names and addresses with the Trustee within two years preceding the
giving of such notice, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); PROVIDED that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on 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 the directors or trustees
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each Holder of any Security 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, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (f) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (f) (if
the suit under clause (c) or (f) relates to all the Securities then
Outstanding), of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
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ARTICLE VI
CONCERNING THE TRUSTEE
6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT;
PRIOR TO DEFAULT. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of such series and after the curing or waiving of all
Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise with respect to such series of Securities such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of
all such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely
by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such statements, certificates or opinions which by
any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders
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pursuant to Section 5.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate or Issuer Order (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified by
the secretary or an assistant secretary of the Issuer;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;
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(f) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture;
(g) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a majority
in aggregate principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be
paid by the Issuer or, if paid by the Trustee or any predecessor Trustee,
shall be repaid by the Issuer upon demand; and
(h) 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 not regularly in its employ and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES
OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS
ETC. The Trustee, or any agent of the Issuer or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities or Coupons
with the same rights it would have if it were not the Trustee or such agent and
may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Such moneys shall be invested in
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accordance with the Issuer's written instructions. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest on
any moneys received by it hereunder.
6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM.
The Issuer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Issuer and the Trustee (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
and all loss, liability or expense, including taxes (other than taxes based upon
or measured by the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities or Coupons, and the Securities are hereby subordinated to such senior
claim.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(d) or Section 5.1(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
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6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE
TRUSTEE. As of the date hereof, the Issuer has no outstanding debt securities
issued pursuant to an indenture of which the Trustee is the trustee.
6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee of each
series of Securities hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any State or
the District of Columbia having a combined capital and surplus of at least
$50,000,000, and which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal, or District of
Columbia authority. Such corporation shall have its principal place of business
or an agency in the Borough of Manhattan, The City of New York if there be such
a corporation in such location willing to act upon reasonable and customary
terms and conditions. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
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. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all
series of Securities by giving written notice of resignation to the Issuer
and (i) if any Unregistered Securities of a series affected are then
Outstanding, by giving notice of such resignation to the Holders thereof,
by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities
of a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and
addresses with the Trustee within two years preceding the giving of such
notice at such addresses as were so furnished to the Trustee and (iii) by
mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they
shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has
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been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section
5.12, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and Section 310(a) of
the Trust Indenture Act of 1939 and shall fail to resign after
written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 315(e) of the Trust Indenture Act
of 1939, any Securityholder who has been a bona fide Holder of a Security
or Securities 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 removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of each series at the time Outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 7.1 of
the action in that regard taken by the Securityholders.
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(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
(e) The Issuer shall give notice of each removal of the
Trustee (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at
least once in an Authorized Newspaper in The City of New York and at least
once in an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), (b) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
within two years preceding the giving of such notice, by mailing such
notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the
Issuer for such purpose) and (c) to the Holders of Registered Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books.
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations of its predecessor
hereunder with respect to such series, with like effect as if originally named
as trustee for such series hereunder; but, nevertheless, on the written request
of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of such series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall
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constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided
in this Section 6.11, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.6, at least
once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee within two years preceding
the giving of such notice, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 6.10. If the Issuer fails to give such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be given at the expense of the
Issuer.
6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF
TRUSTEE. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, PROVIDED that such corporation shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; PROVIDED, that the right to adopt the certificate of authentication
of any
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predecessor Trustee or to authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
6.13 APPOINTMENT OF AUTHENTICATING AGENT. As long as any Securities
of a series remain Outstanding, the Trustee may, by an instrument in writing,
appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to 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 for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by Federal, State or District of Columbia
authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to
be eligible shall, resign by giving written notice of resignation to the Trustee
and to the Issuer. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Issuer. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section 6.13 with
respect to one or more series of Securities, the Trustee shall upon receipt of
an Issuer Order appoint a successor Authenticating Agent and the Issuer shall
provide notice of such appointment to all Holders of Securities of such series
in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The
Issuer agrees to pay to the Authenticating Agent for such series from time to
time reasonable compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee.
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Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request,
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged
to him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the
holding by any Holder of an Unregistered Security of any series, and the
identifying number of such Security and the date of his holding the same,
may be proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate
shall be deemed by the Trustee to be satisfactory. Each such certificate
shall be dated and shall state that on the date thereof a Security of such
series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may
be issued in respect of one or more Unregistered Securities of one or more
series specified therein. The holding by the person named in any such
certificate of any Unregistered Securities of any series specified therein
shall be presumed to continue for a period of one year from the date of
such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced,
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or (2) the Security of such series specified in such certificate shall be
produced by some other person, or (3) the Security of such series
specified in such certificate shall have ceased to be Outstanding. Subject
to Sections 6.1 and 6.2, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by
the person so executing such instrument and the amount and numbers of any
Security or Securities for such series may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the
Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security register or by a
certificate of the Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities of any series entitled to vote or
consent to any action referred to in Section 7.1, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Unregistered Security or Coupon.
7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities
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with respect to which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the Trustee,
the Issuer shall furnish to the Trustee promptly an Officer's Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned
or held by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officer's Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
7.6 RECORD DATE FOR CONSENTS AND WAIVERS. The Issuer may, but shall
not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past default with
respect to the Securities of such series in accordance with Section 5.10 or (ii)
consent to any supplemental indenture in accordance with Section 8.2 or (iii)
waive compliance with any term, condition or provision of any covenant hereunder
(if the Indenture should expressly provide for such waiver). If a record date is
fixed, the Holders on such record date, or their duly designated proxies, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior
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to the date which is the 90th day after such record date, any such waiver or
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The
Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge any
property or assets to the Trustee as security for the Securities of one
or more series;
(b) to evidence the succession of another entity to the
Issuer, or successive successions, and the assumption by the successor of
the covenants, agreements and obligations of the Issuer pursuant to
Article IX;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of
Securities or Coupons, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein
set forth; PROVIDED, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event
of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provisions as the Issuer
may deem necessary or desirable, PROVIDED that no such action shall
adversely affect the interests of the Holders of the Securities or
Coupons;
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(e) to establish the forms or terms of Securities of any
series or of the Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS. With
the consent (evidenced as provided in Article VII) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as a
single class), the Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities, of each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall
(a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate (or alter the method of
computation) of interest thereon or extend the time for payment thereof,
or reduce (or alter the method of computation of) any amount payable on
redemption or repayment thereof or extend the time for payment thereof, or
make the principal thereof or interest thereon (including any amount in
respect of original issue discount) payable in any coin or currency other
than that provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount that would be due and payable upon an
acceleration of the maturity of any Security pursuant to Section 5.1, or
alter the provisions of Section 11.11 or 11.12 or impair or affect the
right of any Securityholder to institute suit for the payment thereof or,
if the Securities
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provide therefor, any right of repayment at the option of the
Securityholder, in each case without the consent of the Holder of each
Security so affected; or
(b) reduce the aforesaid percentage in principal amount of
Securities of any series, the consent of the Holders of which is required
for any such supplemental indenture, without the consent of the Holders of
each Security so affected.
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 Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee within two years preceding the giving of such
notice, by mailing a notice thereof by first-class mail to such Holders at such
addresses as were so furnished to the Trustee and (iii) if any Unregistered
Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section 3.6, at least
once in an Authorized Newspaper in Luxembourg), and in each case such notice
shall set forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
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8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
8.6 EFFECT ON SENIOR INDEBTEDNESS. No supplemental indenture shall
adversely affect the rights of any holder of Senior Indebtedness under Article
XIII without the consent of such holder.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Issuer with any other corporation or corporations
(whether or not affiliated with the Issuer), or successive consolidations or
mergers in which the Issuer or its successor or successors shall be a party or
parties, or shall prevent any sale or conveyance of all or substantially all the
property of the Issuer to any other corporation (whether or not affiliated with
the Issuer) authorized to acquire and operate the same; PROVIDED, HOWEVER, that
immediately after giving effect to such transaction, no Event of Default with
respect to any series of Securities and no event which, after notice or lapse of
time or both, would become an Event of Default with respect to any series of
Securities shall have occurred and be continuing; and PROVIDED FURTHER, that
upon any such consolidation, merger, sale or conveyance, other than a
consolidation or merger in which the Issuer is the
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continuing corporation, the due and punctual payment of the principal of and
interest on all of the Securities and Coupons, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee by the corporation (if other than the Issuer)
formed by such consolidation, or into which the Issuer shall have been merged,
or which shall have acquired such property, and PROVIDED, FURTHER, that such
corporation shall be incorporated under the laws of the United States of America
or a State of the United States of America.
9.2 SUCCESSOR ISSUER SUBSTITUTED. In case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor corporation,
by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and interest on all of the Securities and Coupons and the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Issuer, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein
as the Issuer. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder, together with any
Coupons appertaining thereto, which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions, and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities, together with any Coupons appertaining thereto,
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee, and any Securities, together with any Coupons
appertaining thereto, which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Securities so
issued, together with any Coupons appertaining thereto, shall in all respects
have the same legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and Coupons had been issued at the
date of the execution hereof.
In the event of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
9.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(a) If at any time (i) the Issuer shall have paid or caused to
be paid the interest on all the Securities of any series Outstanding
hereunder and all Coupons appertaining thereto (other than Securities of
such series and Coupons appertaining thereto which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
2.9) as and when the same shall have become due and payable, or (ii) the
Issuer shall have delivered to the Trustee for cancellation all Securities
of any series theretofore authenticated and all Coupons appertaining
thereto (other than any Securities of such series and Coupons appertaining
thereto which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.9) or (ii) in the case
of any series of Securities where the exact amount (including the currency
of payment) of principal of and interest due on such Securities can be
determined at the time of making the deposit referred to in clause (B)
below, (A) all the Securities of such series and all Coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (B) the Issuer shall have irrevocably deposited or caused
to be irrevocably deposited with the Trustee 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 the
Securities of such series and Coupons appertaining thereto, (x) cash in an
amount, or (y) in the case of any series of Securities the payments on
which may only be made in Dollars, direct obligations of the United States
of America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest at such times and in
such amounts as will insure the availability of cash in an amount, or (C)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the principal and
interest on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable (whether
at maturity or upon redemption (through operation of a mandatory sinking
fund or otherwise) other than any redemption at the option of the Holder);
and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer, then all of the Securities
of such series and any Coupons appertaining thereto shall be deemed paid
and discharged and the provisions of this Indenture with respect to such
Securities and Coupons shall cease to be of further effect (except as to
(1) rights of registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto and the Issuer's right of
optional redemption, if any, (2) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (3) rights of
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Holders of Securities and Coupons appertaining thereto to receive payments
of principal thereof and interest thereon, upon the stated due dates
therefor (whether at maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) other than any redemption at the
option of the Holder) (but not upon acceleration), and remaining rights of
the Holders to receive mandatory sinking fund payments, if any, (4) the
rights, obligations, duties and immunities of the Trustee hereunder, (5)
the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them, and (6) the
obligations of the Issuer under Section 3.2) and the Trustee, on demand of
the Issuer accompanied by an Officer's Certificate and an Opinion of
Counsel which complies with Section 11.5 and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging the same. The
Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee
for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities of such
series.
(b) In addition to discharge of the Indenture pursuant to the
next preceding paragraph, in the case of any series of Securities where
the exact amounts (including the currency of payment) of principal of and
interest due on such Securities can be determined at the time of making
the deposit, referred to in clause (A) below, on the 91st day after the
date of such deposit all the Securities of such a series and any Coupons
appertaining thereto shall be deemed paid and discharged and the
provisions of this Indenture with respect to the Securities and Coupons
shall cease to be of further effect (except as to (i) rights of
registration of transfer, exchange of Securities of such series and of
Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of
principal thereof and interest thereon, upon the stated due dates therefor
(whether at maturity or upon redemption (through operation of a mandatory
sinking fund or otherwise) other than any redemption at the option of the
Holder) (but not upon acceleration), (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of then and (vi) the obligations of the
Issuer under Section 3.2) and the Trustee, at the expense of the Issuer,
shall at the Issuer's request, execute proper instruments acknowledging
the same, if
(A) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee 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 the Securities of such series and Coupons appertaining thereto,
(1) cash in an amount, or (2) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at
such times and in such
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amounts as will insure the availability of cash in an amount or (3)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is
due and payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder);
(B) no Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect
to the Securities shall have occurred and be continuing on the date
of such deposit or, insofar as subsections 5.1(d) and (e) 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);
(C) such deposit and discharge will not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Issuer is a party or by which
it is bound;
(D) such deposit and discharge shall not cause the
Trustee to have a conflicting interest as defined in Section 310(b)
of the Trust Indenture Act of 1939;
(E) such deposit and discharge shall not cause any
Securities then listed on any registered national securities
exchange to be listed;
(F) the Issuer shall have delivered to the Trustee an
Opinion of Counsel based on the fact that (1) the Issuer has
received from, or there has been published by, the Internal Revenue
Service a ruling or (2) since the date hereof, there has been a
change in the applicable Federal income tax law, in either case to
the effect that, and such opinion shall confirm that, the Holders of
the Securities of such series and Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge, will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit
and discharge had not occurred; and
(G) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent relating to the deposit and discharge
contemplated by this provision have been complied with.
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In the event of "legal" defeasance of any series of Securities,
Holders of all outstanding Senior Indebtedness will receive written notice of
such defeasance.
(c) The Issuer shall be released from its obligations under
Section 9.1 and any other covenants specified pursuant to Section 2.3 with
respect to the Securities of any series and any Coupons appertaining
thereto on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of the
applicable series, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in
such Section or any such covenant, whether directly or indirectly by
reason of any reference elsewhere herein to such Section or any such
covenant or by reason of any reference in such Section or any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section
5.1, but the remainder of this Indenture and such Securities and Coupons
shall be unaffected thereby. The following shall be the conditions to
application of this subsection (c) of this Section 10.1:
(i) The Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee 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 the Securities of such series and Coupons appertaining thereto,
(A) cash in an amount, or (B) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash in
an amount or (C) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal and interest on all Securities of such
series and Coupons appertaining thereto on each date that such
principal or interest is due and payable (whether at maturity or
upon redemption (through operation of a mandatory sinking fund or
otherwise) other than any redemption at the option of the Holder).
(ii) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect
to the Securities shall have occurred and be continuing on the date
of such deposit or, insofar as subsections 5.1(d) and (e) 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).
(iii) Such covenant defeasance will not result in a
breach or violation of, or constitute a default under, any agreement
or instrument to which the Issuer is a party or by which it is
bound.
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(iv) Such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 310(b)
of the Trust Indenture Act of 1939.
(v) Such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be listed.
(vi) The Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the Securities
of such series and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred.
(vii) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the covenant
defeasance contemplated by this provision have been complied with.
10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 10.4, all moneys and Securities deposited with
the Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the
payment or redemption of which such moneys or Securities have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys or Securities need not be segregated from other funds
except to the extent required by law.
10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR
TWO YEARS. Any moneys deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any Security of any series or
Coupons attached thereto and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series and of any Coupons
appertaining thereto shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or
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unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such paying agent, before being required to make
any such repayment with respect to moneys deposited with it for any payment (a)
in respect of Registered Securities of any series, shall at the expense of the
Issuer, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any series, shall at the expense of the Issuer cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and once in an Authorized Newspaper in London (and if
required by Section 3.6, once in an Authorized Newspaper in Luxembourg), notice,
that such moneys remain and that, after a date specified therein, which shall
not be less than thirty days from the date of such mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
10.5 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.1 or the principal or interest received in respect of such obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER
EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND
HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the Securities
or in the Coupons appertaining thereto, expressed or implied, shall give or be
construed to give to any Person, other than the parties hereto and their
successors and the Holders of the Securities or Coupons, if any, any legal or
equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of the
Securities or Coupons, if any.
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11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. Any notice or demand which by any provision of this
Indenture is required or permitted to he given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Sysco Corporation, 1390 Enclave
Parkway, Houston, Texas 77077-2099, Attention: Vice President, Finance. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
or Coupons to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to Attention: Corporate Trust
Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of Unregistered
Securities who have filed their names and addresses within two years preceding
the giving of such notice, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his last address as it
appears in such filing. Notice to other Unregistered Securities shall be by
publication as provided in Section 6.10(a)(i). In any case where notice to such
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case
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of any such application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters where the information is in the possession of the
Issuer, upon the certificate, statement or opinion of or representations by an
officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the date of
maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of
any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
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11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT
OF 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture by
operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939
(an "incorporated provision"), such incorporated provision shall control.
11.8 NEW YORK LAW TO GOVERN. This Indenture and each Security and
Coupon shall be deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of such
State, except as may otherwise be required by mandatory provisions of law.
11.9 COUNTERPARTS. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
11.10 EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
11.11 SECURITIES IN A FOREIGN CURRENCY OR IN ECU. Unless otherwise
specified in an Officer's Certificate delivered pursuant to Section 2.3 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and at such time,
there are Outstanding Securities of any series which are denominated in a coin
or currency other than Dollars (including ECUs), then the principal amount of
Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 11.11, Market Exchange Rate shall mean the noon Dollar buying rate in
New York City for cable transfers of that currency published by the Federal
Reserve Bank of New York; PROVIDED, HOWEVER, in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the Commission of
the European communities (or any successor thereto) as published in the Official
Journal of the European Communities (such publication or any successor
publication, the "Journal"'). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate. The
provisions of this paragraph shall apply in determining the equivalent principal
amount in respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to
the terms of this Indenture.
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All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
11.12 JUDGMENT CURRENCY. The Issuer agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the day on which
final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 APPLICABILITY OF ARTICLE. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their
maturity (pursuant to operation of any sinking fund or otherwise) except as
otherwise specified, as contemplated by Section 2.3, for Securities of such
series.
12.2 NOTICE OF REDEMPTION: PARTIAL REDEMPTIONS. Notice of redemption
to the Holders of Registered Securities of any series to be redeemed as a whole
or in part other than at the option of the Holder shall be given by mailing
notice of such redemption by first-class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for
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redemption to such Holders at their last addresses as they shall appear upon the
registry books. Notice of redemption to the Holders of Unregistered Securities
to be redeemed as a whole or in part, who have filed their names and addresses
with the Trustee within two years preceding the giving of such notice, shall be
given by mailing notice of such redemption, by first-class mail, postage
prepaid, at least 30 days and not more than 60 prior to the date fixed for
redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice of
redemption to all other Holders of Unregistered Securities shall be published in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and in
an Authorized Newspaper in London (and, if required by Section 3.6, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor more
than 60 days prior to the date fixed for redemption. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice, or
any deficiency in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of the same
series, of like tenor and in an aggregate principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.4) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all Outstanding Securities of any series are to be redeemed, Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for redemption
an Officer's Certificate stating the aggregate principal amount of Securities
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of such series to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer
shall deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officer's Certificate stating that such
restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples of the minimum authorized denomination for
Securities of such series. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series 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 of any series 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.
12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and 10.4, such Securities shall cease
from and after the close of business on the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as of the
relevant record date subject to the terms and provisions of Sections 2.3 and 2.7
hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the
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surrender of such missing Coupon or Coupons may be waived by the Issuer and the
Trustee, if there be furnished to each of them such security or indemnity as
they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of the same series, in authorized denominations, of like tenor and in
an aggregate principal amount equal to the unredeemed portion of the Security so
presented.
12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION
FOR REDEMPTION. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any
sinking fund payment provided for by the terms of the 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 the Securities of any
series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, and
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series to be so credited have previously been so credited, (c) stating that
no defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such
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series to be credited and required to be delivered to the Trustee in order for
the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer's Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officer's Certificate and Securities (subject to the parenthetical clause
in the second preceding sentence) specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU)
if the Issuer shall so request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the issuer makes no such request then it
shall be carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) is available. The Trustee shall select,
in the manner provided in Section 12.2 and subject to the limitations in Section
12.4, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so
selected. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 12.2 (and with the effect provided in Section 12.3)
for the redemption of Securities of such series in part. The amount of any
sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier, if
such maturity is accelerated), which are not held for the payment or redemption
of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
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On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE XIII
SUBORDINATION OF SECURITIES
13.1 AGREEMENT TO SUBORDINATE. The Issuer covenants and agrees, and
each Holder of Securities issued hereunder by his acceptance thereof likewise
covenants and agrees, that all Securities issued hereunder shall be issued
subject to the provisions of this Article XIII and each Person holding any
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions. The provisions of this
Article XIII are made for the benefit of the holders of Senior Indebtedness, and
such Holders shall, at any time, be entitled to enforce such provisions against
the Issuer or any Securityholders.
All Securities issued hereunder shall, to the extent and in the
manner hereinafter in this Article set forth, be subordinate and junior in right
of payment to the prior payment in full of all Senior Indebtedness.
13.2 NO PAYMENT ON SECURITIES IF SENIOR INDEBTEDNESS IN DEFAULT. No
payment (including the making of any deposit in trust with the Trustee in
accordance with Section 10.1) on account of principal or interest on the
Securities or payment to acquire any of the Securities for cash or property
shall be made if, at the time of such payment or immediately after giving effect
thereto, (i) there shall exist a default in the payment of
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principal or interest with respect to any Senior Indebtedness, when due and
payable, whether at maturity, upon any redemption, by declaration or otherwise,
or (ii) there shall have occurred an Event of Default (other than a default in
the payment of principal or interest) with respect to any Senior Indebtedness,
as defined therein or in the instrument under which the same is outstanding,
permitting the holders thereof to accelerate the maturity thereof, if such
holders have given written notice of the Event of Default to the Issuer and the
Trustee (a "Default Notice"), unless and until such event of default has been
cured or waived or the Issuer and Trustee have received notice from such holders
terminating the Blockage Period (as defined below) during the 180 days after
delivery of such Default Notice (the "Blockage Period"). At the expiration of
such Blockage Period, the Issuer shall, subject to the foregoing, promptly pay
to the Trustee all sums not paid during such Blockage Period as a result of this
Section. Only one such Blockage Period may be commenced within any 360
consecutive days. For all purposes of this Section, no event of default which
existed or was continuing with respect to the Senior Indebtedness to which the
Blockage Period relates on the date such Blockage Period commenced shall be or
be made the basis for the commencement of any subsequent Blockage Period by the
holders of such Senior Indebtedness unless such event of default is cured or
waived for a period of not less than 90 consecutive days. The foregoing
provision shall not prevent the Trustee from making payments on the Securities
from monies or securities deposited with the Trustee pursuant to the terms of
Section 10.1 if at the time such deposit was made or immediately after giving
effect thereto the conditions in (i) or (ii) of this Section and in (a) and (b)
of Section 13.3 did not exist.
13.3 PRIORITY OF SENIOR INDEBTEDNESS. In the event (a) that any
Security is declared due and payable before its expressed maturity or (b) of any
insolvency or bankruptcy proceedings, and any receivership, liquidation,
reorganization under the Federal bankruptcy code or any other similar applicable
Federal or state law, or other similar proceedings in connection therewith,
relative to the Issuer or to its creditors, as such, or to its property, and in
the event of any proceedings for voluntary liquidation, dissolution or other
winding up of the Issuer or assignment for the benefit of creditors or any other
marshalling of assets of the Issuer, whether or not involving insolvency or
bankruptcy, then the holders of Senior Indebtedness shall be entitled to require
payment in full of all principal of and premium, if any, and interest on all
Senior Indebtedness (including, in the case of (b), interest on such Senior
Indebtedness after the date of filing of a petition or other action commencing
such proceeding) before the Holders of the Securities are entitled to receive
any payment on account of the principal of or interest on the Securities or
payment to acquire any of the Securities for cash or property (except that
Holders of Securities shall be entitled to receive such payments from monies or
securities deposited with the Trustee pursuant to the terms of Section 10.1 if
at the time such deposit was made or immediately after giving effect thereto the
conditions in (a) or (b) of this Section did not exist). In any such event any
payment or distribution of any kind or character which may be payable or
deliverable in respect of the Securities, except Securities issued in any
proceedings referred to in clause (b) above which are subordinate and junior in
right of payment to the payment of all Senior Indebtedness then outstanding,
shall be paid by the
-65-
person making such payment or distribution directly to the holders of Senior
Indebtedness to the extent necessary to make payment in full of all Senior
Indebtedness, after giving effect to, any concurrent payment or distribution to
the holders of Senior Indebtedness. In the event that any payment or
distribution of cash, property or securities shall be received by the Trustee or
the Holders of the Securities in contravention of this Section before all Senior
Indebtedness is paid in full, or provision made for the payment thereof, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over to the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay in full
all Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
13.4 RELIANCE BY TRUSTEE AND SECURITYHOLDERS. Upon any payment or
distribution of assets of the Issuer referred to in this Article, the Trustee,
in the absence of its negligence or bad faith and any Holder of a Security shall
be entitled to rely upon a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article. In the event
that the Trustee determines, in good faith, that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such Person, as to
the extent to which such Person is entitled to participate in such payment or
distribution and as to other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such
covenants and obligations as are specifically set forth in this Indenture and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
13.5 SUBROGATION OF SECURITIES. Subject to the payment in full of
all Senior Indebtedness, the Holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or assets of the Issuer made on the Senior
Indebtedness until the principal of and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or distributions
to the Holders of Senior Indebtedness of any cash, property, or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the
-66-
provisions of this Article, and no payment over pursuant to the provisions of
this Article to the Holders of Senior Indebtedness by Holders of the Securities
or by the Trustee, shall, as between the Issuer, its creditors other than the
Holders of Senior Indebtedness, and the Holders of Securities, be deemed to be a
payment by the Issuer to or on account of Senior Indebtedness, and no payments
or distributions of cash, property or securities to the Trustee or the Holders
of the Securities pursuant to the provisions of this Section that would
otherwise have been paid or distributed to the holders of the Senior
Indebtedness to which the Trustee or the Holders of the Securities shall become
entitled shall, as between the Issuer, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment by the Issuer to the Holders of or on account of the Securities.
13.6 ISSUER OBLIGATION TO PAY UNCONDITIONAL. The provisions of this
Article are solely for the purpose of defining the relative rights of the
holders of Senior Indebtedness, on the one hand, and the Holders of the
Securities, on the other hand, and nothing herein shall impair, as between the
Issuer and the Holders of the Securities, the obligation of the Issuer which is
unconditional and absolute, to pay to the Holders thereof the principal thereof
and interest thereon in accordance with the terms of the Securities and this
Indenture nor shall anything herein prevent the Holders of the Securities or the
Trustee from exercising all remedies otherwise permitted by applicable law or
under the Securities and this Indenture upon default under the Securities and
this Indenture, subject to the rights of holders of Senior Indebtedness under
the provisions of this Article to receive cash, property or Securities otherwise
payable or deliverable to the Holders of the Securities.
13.7 AUTHORIZATION OF HOLDERS OF SECURITIES TO TRUSTEE TO EFFECT
SUBORDINATION. Each Holder of Securities by his acceptance thereof authorizes
the Trustee in his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
13.8 NOTICE TO TRUSTEE OF FACTS PROHIBITING PAYMENTS. The Issuer
shall give prompt written notice to the Trustee of any fact known to the Issuer
which would prohibit the making of any payment to or by the Trustee in respect
to the Securities pursuant to the provisions of this Article. Notwithstanding
any of the provisions of this Article or any other provision of this Indenture,
the Trustee shall not at any time be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of moneys to or by the
Trustee, unless and until the principal office of the Trustee shall have
received written notice thereof from the Issuer or from one or more holders of
Senior Indebtedness or from any Trustee therefor, together with proof reasonably
satisfactory to the Trustee of such holding of Senior Indebtedness or the
authority of such Trustee, and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be
entitled in all respects to assume that no such facts exist; provided, that, if
prior to the second business day preceding the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without
limitation, the payment of
-67-
the principal of or interest on any Security), the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee and
any paying agent shall have full power and authority to receive such moneys and
to apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such day.
13.9 TRUSTEE MAY HOLD SENIOR INDEBTEDNESS. The Trustee shall be
entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
13.10 ALL INDENTURE PROVISIONS SUBJECT TO THIS ARTICLE.
Notwithstanding anything herein contained to the contrary, all the provisions of
this Indenture shall be subject to the provisions of this Article, so far as the
same may be applicable thereto; provided, however, that nothing in this Article
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.6.
13.11 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
ISSUER OR HOLDERS OF SENIOR INDEBTEDNESS. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as provided herein
will at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with the
Issuer, all without affecting the liabilities and obligations of the parties to
the Indenture or the Holders of the Securities.
-68-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of __________ ___, 1995.
SYSCO CORPORATION
By:
-------------------------------
Title:
-------------------------------------,
TRUSTEE
By:
-------------------------------
Title:
-69-
<PAGE>
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
39-WEEK PERIOD ENDED FISCAL YEAR ENDED
--------------------- (SATURDAY CLOSEST TO JUNE 30)
APRIL 1, APRIL 2, ---------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
--------- --------- --------- --------- --------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before income taxes......... $ 289,722 $ 255,749 $ 367,582 $ 331,977 $ 281,656 $ 250,864 $ 216,086
Add Fixed
Charges............................ 30,566 28,813 37,585 40,319 45,567 52,891 60,653
--------- --------- --------- --------- --------- --------- ---------
Total........................ 320,288 284,562 405,167 372,296 327,223 303,755 276,739
Fixed Charges:
Interest
expense.......................... 28,738 27,898 36,272 39,004 43,275 49,082 56,548
Capitalized interest............... 1,828 915 1,313 1,315 2,292 3,809 4,105
--------- --------- --------- --------- --------- --------- ---------
Total........................ $ 30,566 $ 28,813 $ 37,585 $ 40,319 $ 45,567 $ 52,891 $ 60,653
Ratio................................ 10.5x 9.9x 10.8x 9.2x 7.2x 5.7x 4.6x
</TABLE>
<PAGE>
EXHIBIT 24(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated August 3, 1994
included in SYSCO Corporation's Form 10-K for the year ended July 2, 1994 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
June 6, 1995
<PAGE>
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM T-1
-------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE OF 1939, AS AMENDED
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
230 S. TRYON STREET, 8TH FLOOR
CHARLOTTE, NORTH CAROLINA 28288 56-0900030
(ADDRESS OF PRINCIPAL (ZIP CODE) (I.R.S. EMPLOYER
EXECUTIVE OFFICE) IDENTIFICATION NO.)
------------------------
SYSCO CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN CHARTER)
DELAWARE 74-1648137
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1390 ENCLAVE PARKWAY
HOUSTON, TX 77077-2099
(ADDRESS OF PRINCIPAL (ZIP CODE)
EXECUTIVE OFFICES)
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
==============================================================================
<PAGE>
1. General information.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C. Federal Reserve Bank
of Richmond, Virginia. Federal Deposit Insurance Corporation,
Washington, D.C. Securities and Exchange Commission, Division of
Market Regulation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
(See Note 2 on Page 5)
3. Voting Securities of the Trustee.
The following information is furnished as to each class of voting
securities of the Trustee:
AS OF MARCH 31, 1995
- -------------------------------------------------------------------------------
COLUMN A COLUMN B
- -------------------------------------------------------------------------------
TITLE OF CLASS AMOUNT OUTSTANDING
- -------------------------------------------------------------------------------
Common Stock, par value $3.33 1/3 a share 170,338,625 shares
4. Trusteeships under other indentures.
The Trustee is not a trustee under any other indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding.
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
Neither the Trustee nor any of the directors or executive officers of
the Trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor.
(See Note 2 on Page 5)
2
6. Voting securities of the Trustee owned by the obligor or its officials.
Voting securities of the Trustee owned by the obligor and its directors,
partners, executive officers, taken as a group, do not exceed one percent
of the outstanding voting securities of the Trustee.
(See Notes 1 and 2 on Page 5)
7. Voting securities of the Trustee owned by underwriters or their officials.
Voting securities of the Trustee owned by any underwriter and its
directors, partners, and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the Trustee.
(See Note 2 on Page 5)
8. Securities of the obligor owned or held by the Trustee.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in default
does not exceed one percent of the outstanding securities of the obligor.
(See Note 2 on Page 5)
9. Securities of underwriters owned or held by the Trustee.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of an underwriter for the obligor.
(See Note 2 on Page 5)
10. Ownership or holdings by the Trustee of voting securities of certain
affiliates or security holders of the obligor.
The Trustee does not own beneficially or hold as collateral security for
obligations in default voting securities of a person, who, to the knowledge
of the Trustee (1) holds 10% or more of the voting securities of the
obligor or (2) is an affiliate, other than a subsidiary, of the obligor.
(See Note 2 on Page 5)
11. Ownership of holders by the Trustee of any securities of a person owning
50 percent or more of the voting securities of the obligor.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of a person who, to the knowledge of
Trustee, owns 50 percent or more of the voting securities of the obligor.
(See Note 2 on Page 5)
3
12. Indebtedness of the obligor to the Trustee
The obligor is not indebted to the Trustee.
13. Defaults by the obligor.
Not applicable.
14. Affiliations with the underwriters.
No underwriter is an affiliate of the Trustee.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee as now in effect. Incorporated
to Exhibit (1) filed with Form T-1 Statement included in Registration
Statement No. 33-45946.
(2) Certificate of Authority of the Trustee to commence business.
Incorporated by reference to Exhibit (2) filed with Form T-1 Statement
included in Registration Statement No. 33-45946.
(3) Authorization of the Trustee to exercise corporate trust powers, if
such authorization is not contained in the documents specified in
exhibits (1) and (2) above.
(4) By-Laws of the Trustee. Incorporated by reference to Exhibit (4) filed
with Form T-1 Statement included in Registration Statement No.
33-45946.
(5) Inapplicable.
(6) Consent by the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939. Included at Page 6 of this Form T-1 Statement.
(7) Report of condition of Trustee.
(8) Inapplicable.
(9) Inapplicable.
4
<PAGE>
-------------------
NOTES
-------------------
1. Since the Trustee is a member of First Union Corporation, a bank holding
company, all of the voting securities of the Trustee are held by First Union
Corporation. The securities of First Union Corporation are described in Item 3.
2. Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answers to Items 2, 5, 6, 7, 8,
9, 10 and 11, the answers to said items are based on incomplete information.
Items 2, 5, 6, 7, 8, 9, 10 and 11 may, however by considered as correct unless
amended by an amendment to this Form T-1.
5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina on the 6th day of June, 1995.
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
(Trustee)
BY: /s/ KAREN E. ATKINSON
KAREN E. ATKINSON
TRUST OFFICER
EXHIBIT T-1 (6)
CONSENTS OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939 and in connection
with the proposed issuance by Sysco Corporation of its Debt Securities under
the Senior Debt Indenture and Subordinated Debt Indenture, First Union
National Bank of North Carolina, as the Trustee herein named, hereby consents
that reports of examinations of said Trustee by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
BY: /s/ MARION D. STRATAKOS
MARION D. STRATAKOS
VICE PRESIDENT
Dated: June 6, 1995
6
<PAGE>
EXHIBIT 28
June 6, 1995
SYSCO Corporation:
We are aware that SYSCO Corporation has incorporated by reference in this
Registration Statement on Form S-3 its Forms 10-Q for the quarters ended
October 1, 1994, December 31, 1994 and April 1, 1995, which include our
reports dated November 4, 1994, February 7, 1995 and May 12, 1995, covering
the unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933, those reports are not considered a
part of the registration statement prepared or certified by our firm or
reports prepared or certified by our firm within the meaning of Sections 7 and
11 of the Act.
Very truly yours,
ARTHUR ANDERSEN LLP
<PAGE>
