Exhibit 4.1
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THE X.X. XXXXXXX COMPANY
(ISSUER)
AND
JPMORGAN CHASE BANK
(TRUSTEE)
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INDENTURE
DATED AS OF _____________, 2002
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TABLE OF CONTENTS
PAGE
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ARTICLE One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................................1
Section 101. DEFINITIONS.......................................................................1
Act.............................................................................................1
Affiliate.......................................................................................1
Authenticating Agent............................................................................2
Authorized Newspaper............................................................................2
Bearer Security.................................................................................2
Board of Directors..............................................................................2
Board Resolution................................................................................2
Business Day....................................................................................2
Capital Stock...................................................................................2
Capitalized Lease Obligation....................................................................2
Clearstream.....................................................................................2
Commission......................................................................................2
Common Depositary...............................................................................3
Company.........................................................................................3
Company Request or Company Order................................................................3
Corporate Trust Office..........................................................................3
corporation.....................................................................................3
coupon..........................................................................................3
Currency Determination Agent....................................................................3
Defaulted Interest..............................................................................3
Depositary......................................................................................3
Dollar or $.....................................................................................3
Euro-clear......................................................................................3
Event of Default................................................................................3
Exchange Date...................................................................................3
Holder..........................................................................................3
Indebtedness....................................................................................3
Indenture.......................................................................................4
interest........................................................................................4
Interest Payment Date...........................................................................4
Market Exchange Rate............................................................................4
Maturity........................................................................................4
Mortgage........................................................................................5
Officers' Certificate...........................................................................5
Opinion of Counsel..............................................................................5
Original Issue Discount Security................................................................5
Outstanding.....................................................................................5
Paying Agent....................................................................................6
Person..........................................................................................6
Place of Payment...............................................................................6
Predecessor Security...........................................................................6
Redemption Date................................................................................6
Redemption Price...............................................................................6
Registered Security............................................................................6
Regular Record Date............................................................................6
Responsible Officer............................................................................7
Sale and Leaseback Transaction.................................................................7
Securities.....................................................................................7
Security Register and Security Registrar.......................................................7
series.........................................................................................7
Shareholders' Ownership........................................................................7
Special Record Date............................................................................7
Stated Maturity Date...........................................................................7
Subsidiary.....................................................................................7
Trustee........................................................................................7
Trust Indenture Act............................................................................7
United States..................................................................................7
United States Alien............................................................................7
U.S. Depositary................................................................................8
U.S. Government Obligations....................................................................8
Vice President.................................................................................8
Voting Stock...................................................................................8
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.............................................8
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................................9
Section 104. ACTS OF HOLDERS..................................................................9
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY...........................................11
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.........................................11
Section 107. LANGUAGE OF NOTICES, ETC........................................................12
Section 108. CONFLICT WITH TRUST INDENTURE ACT...............................................12
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................................13
Section 110. SUCCESSORS AND ASSIGNS..........................................................13
Section 111. SEPARABILITY CLAUSE.............................................................13
Section 112. BENEFITS OF INDENTURE...........................................................13
Section 113. EXEMPTION FROM INDIVIDUAL LIABILITY.............................................13
Section 114. GOVERNING LAW...................................................................14
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Section 115. LEGAL HOLIDAYS..................................................................14
ARTICLE Two SECURITY FORMS......................................................................................14
Section 201. FORMS GENERALLY.................................................................14
Section 202. FORM OF TRUSTEE'S CERTIFICATES OF AUTHENTICATION................................15
Section 203. SECURITIES IN GLOBAL FORM.......................................................15
ARTICLE Three THE SECURITIES....................................................................................16
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................................16
Section 302. DENOMINATIONS...................................................................19
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................................19
Section 304. TEMPORARY SECURITIES............................................................22
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.............................24
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITY AND COUPONS......................28
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................................29
Section 308. PERSONS DEEMED OWNERS...........................................................30
Section 309. CANCELLATION....................................................................31
Section 310. COMPUTATION OF INTEREST.........................................................31
Section 311. APPOINTMENT AND RESIGNATION OF SUCCESSOR CURRENCY DETERMINATION
AGENT...........................................................................31
Section 312. CUSIP NUMBERS...................................................................32
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................................32
Section 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES
PRIOR TO THE STATED MATURITY DATE OTHER THAN UPON REDEMPTION....................32
Section 402. APPLICATION OF TRUST MONEY......................................................35
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Section 403. SATISFACTION AND DISCHARGE OF INDENTURE.........................................35
Section 404. REINSTATEMENT...................................................................36
Section 405. SATISFACTION AND DISCHARGE OF SECURITIES OF A SERIES AT THE STATED
MATURITY DATE OR UPON REDEMPTION................................................36
ARTICLE Five REMEDIES...........................................................................................37
Section 501. EVENTS OF DEFAULT...............................................................37
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............................38
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.................38
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM................................................39
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.........................................................................40
Section 506. APPLICATION OF MONEY COLLECTED..................................................40
Section 507. LIMITATIONS ON SUITS............................................................41
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST........................................................................41
Section 509. RESTORATION OF RIGHTS AND REMEDIES..............................................42
Section 510. RIGHTS AND REMEDIES CUMULATIVE..................................................42
Section 511. DELAY OR OMISSION NOT WAIVER....................................................42
Section 512. CONTROL BY HOLDERS OF SECURITIES................................................42
Section 513. WAIVER OF PAST DEFAULTS.........................................................42
Section 514. UNDERTAKING FOR COSTS...........................................................43
Section 515. WAIVER OF STAY OR EXTENSION LAWS................................................43
Section 516. JUDGMENT CURRENCY...............................................................43
ARTICLE Six THE TRUSTEE.........................................................................................44
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.............................................44
Section 602. NOTICE OF DEFAULTS..............................................................45
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Section 603. CERTAIN RIGHTS OF TRUSTEE.......................................................46
Section 604. SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.............47
Section 605. MAY HOLD SECURITIES.............................................................47
Section 606. MONEY HELD IN TRUST.............................................................47
Section 607. COMPENSATION AND REIMBURSEMENT..................................................47
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.........................................48
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................................48
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............................48
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................................50
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....................51
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...............................51
Section 614. APPOINTMENT OF AUTHENTICATING AGENT.............................................55
ARTICLE Seven HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................................56
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......................56
Section 702. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS...........................57
Section 703. REPORTS OF TRUSTEE..............................................................58
Section 704. REPORTS BY COMPANY..............................................................60
ARTICLE Eight CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............................................61
Section 801. COMPANY MAY CONSOLIDATE, ETC.; ONLY ON CERTAIN TERMS............................61
Section 802. SUCCESSOR SUBSTITUTED...........................................................61
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ARTICLE Nine SUPPLEMENTAL INDENTURES............................................................................62
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............................62
Section 902. SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS..................................63
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES............................................64
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES...............................................65
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.............................................65
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............................65
ARTICLE Ten COVENANTS...........................................................................................65
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST......................................65
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.................................................66
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST...............................67
Section 1004. ADDITIONAL AMOUNTS..............................................................68
Section 1005. STATEMENTS AS TO COMPLIANCE.....................................................69
Section 1006. CORPORATE EXISTENCE.............................................................69
Section 1007. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.................................69
Section 1008. LIENS ON ASSETS.................................................................70
Section 1009. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS...................................71
Section 1010. WAIVER OF CERTAIN COVENANTS.....................................................72
Section 1011. DEFEASANCE OF CERTAIN OBLIGATIONS...............................................73
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................74
Section 1101. APPLICABILITY OF ARTICLE........................................................74
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE...........................................74
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Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...............................75
Section 1104. NOTICE OF REDEMPTION............................................................75
Section 1105. DEPOSIT OF REDEMPTION PRICE.....................................................76
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE...........................................76
Section 1107. SECURITIES REDEEMED IN PART.....................................................77
ARTICLE Twelve SINKING FUNDS....................................................................................78
Section 1201. APPLICABILITY OF ARTICLE........................................................78
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...........................78
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.......................................78
ARTICLE Thirteen MEETINGS OF HOLDERS OF SECURITIES..............................................................79
Section 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.......................................79
Section 1302. CALL, NOTICE AND PLACE OF MEETINGS..............................................79
Section 1303. PERSONS ENTITLED TO VOTE AT MEETINGS............................................79
Section 1304. QUORUM; ACTION..................................................................80
Section 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.............81
Section 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.................................81
CROSS REFERENCE SHEET..........................................................................................vii
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CROSS REFERENCE SHEET*
Provisions of Sections 310 through 318(a) inclusive of the Trust
Indenture Act and the Indenture dated as of ______________, 2002 between The
X.X. Xxxxxxx Company and JPMorgan Chase Bank, as Trustee.
SECTION OF ACT SECTION OF INDENTURE
310(a)(1)..................................................................609
310(a)(2)..................................................................609
310(a)(3)...................................................................**
310(a)(4)...................................................................**
310(b)..........................................................608 and 610(d)
310(c).....................................................................**
311(a).......................................................613(a) and 613(c)
311(b).......................................................613(b) and 613(c)
311(c)......................................................................**
312(a)..........................................................701 and 702(a)
312(b)..................................................................702(b)
312(c).................................................................702(c)
313(a)..................................................................703(a)
313(b).................................................................703(b)
313(c)..................................................................703(c)
313(d).................................................................703(d)
314(a)............................................................704 and 1005
314(b).....................................................................**
314(c).....................................................................102
314(c)(1)..................................................................102
314(c)(2)..................................................................102
314(c)(3)..................................................................**
314(d)......................................................................**
314(e)....................................................................102
315(a)..................................................................601(a)
315(b).....................................................................602
315(c)..................................................................601(b)
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315(d)(1)...........................................................601(a)(i)
315(d)(2)...........................................................601(c)(ii)
315(d)(3)..........................................................601(c)(iii)
315(e).....................................................................514
316(a).....................................................................101
316(a)(1)(A).......................................................502 and 512
316(a)(1)(B)...............................................................513
316(a)(2)...................................................................**
316(b).....................................................................508
317(a)(1)..................................................................503
317(a)(2)..................................................................504
317(b)....................................................................1003
318(a).....................................................................108
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* This cross reference sheet shall not, for any purpose, be deemed to be a part
of the Indenture.
** Not applicable.
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INDENTURE, dated as of ______________, 2002, between THE X.X. XXXXXXX
COMPANY, an Ohio corporation having its principal office at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000-0000 (the "Company"), and JPMORGAN CHASE BANK, a New York
banking corporation, as Trustee (the "Trustee").
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities") to be
issued in one or more series as provided herein;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that, for and in
consideration of the premises and the purchase of the Securities by the Holders
(hereinafter defined) thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture and all Securities issued hereunder,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States and the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles
as are generally accepted in the United States at the date of such
computation; and
(d) 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 hereof.
Certain terms, used principally in Article Three and Article Six, are defined in
those Articles.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee thereof duly authorized to take the relevant action, as the case may
be and the context herein requires.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions and trust companies in that Place of Payment or other
location are authorized or obligated by law or executive order to close.
"Capital Stock" means, as to shares of a corporation, outstanding
shares of stock of any class whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect
of the rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding up
of such corporation.
"Capitalized Lease Obligation" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with generally accepted accounting principles, is required
to be accounted for as a capital lease on the balance sheet of that Person, and
the amount of such obligation shall be the capitalized amount thereof determined
in conformity with generally accepted accounting principles.
"Clearstream" means Clearstream Banking, Societe Anonyme.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time
2
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
one of its Vice Presidents, and by its Treasurer, its Secretary or one of its
Assistant Secretaries, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office as of the date hereof is at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XX 00000.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Determination Agent," with respect to Securities of any
series, means a New York Clearinghouse bank designated pursuant to Section 301
or Section 311.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means a U.S. Depositary or a Common Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Euro-clear" means Euroclear Bank, S.A./N.V, or its successors, as
operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Holder," when used with respect to any Security, means in the case of
a Registered Security the Person in whose name a Security is registered in the
Security Register and in the case of a Bearer Security (or any temporary global
Security) the bearer thereof and, when used with respect to any coupon, means
the bearer thereof.
"Indebtedness" of any Person means, without duplication, any
indebtedness of such Person in respect of borrowed money, or evidenced by bonds,
notes, debentures or similar instruments or letters of credit or representing
the balance deferred and unpaid of the purchase
3
price of any property, if and to the extent any of the foregoing indebtedness
would appear as a liability upon a balance sheet of such Person, and shall also
include, to the extent not otherwise included, any Capitalized Lease Obligations
and Indebtedness secured by a Mortgage to which the property or assets owned or
held by such Person is subject, whether or not the obligations secured thereby
shall have been assumed; provided, however, that Indebtedness shall not include
trade payables and accrued expenses relating to employees.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity Date of an installment of interest on such Security.
"Market Exchange Rate" means (i) for any conversion involving a
currency unit on the one hand and Dollars or any foreign currency on the other,
the exchange rate between the relevant currency unit and Dollars or such foreign
currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
foreign currency, the noon (New York City time) buying rate for such foreign
currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one foreign currency into Dollars or another foreign currency, the spot rate at
noon local time in the relevant market at which, in accordance with the normal
banking procedures, the Dollars or foreign currency into which conversion is
being made could be purchased with the foreign currency from which conversion is
being made from major banks located in either New York City, London, England or
any other principal market for Dollars or such purchased foreign currency, in
each case determined by the Currency Determination Agent. In the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Currency Determination Agent shall use, in its
sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in Xxx Xxxx Xxxx, Xxxxxx, Xxxxxxx or other
principal market for such currency or currency unit in question, or such other
quotations as the Currency Determination Agent shall deem appropriate. Unless
otherwise specified by the Currency Determination Agent, if there is more than
one market for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of such
currency or currency unit shall be that upon which a nonresident issuer of
securities denominated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities. For purposes of this definition, a "nonresident issuer" shall mean
an issuer that is not a resident of the country or countries that issue such
currency or whose currencies are included in such currency unit.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or
4
herein provided, whether at the Stated Maturity Date or by declaration of
acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to, the Company, or other counsel who shall be
acceptable to the Trustee, in the case of opinions delivered pursuant to
Sections 401 and 1011 and, in all other cases, to the Company and the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities or portions thereof for whose payment or
redemption money in the necessary amount and the required currency has
been theretofore deposited with the Trustee or any Paying Agent (other
than the Company or any other obligor upon the Securities) in trust or
set aside and segregated in trust by the Company or any other obligor
upon the Securities (if the Company or such other obligor shall act as
its own Paying Agent) for the Holders of such Securities and any
coupons thereto appertaining; provided, that if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(c) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; provided, however, that in determining
whether the holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether a quorum is
present at a meeting of holders of Securities, (x) the principal amount
of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, (y)
the principal amount of a Security denominated in a foreign currency or
currencies or
5
currency unit shall be the U.S. dollar equivalent, determined as of the
date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent on the date of original issuance of such Security of
the amount determined as provided in (x) above) of such Security, and
(z) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, or upon any such determination as to the presence of a quorum,
only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act with respect to
such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or any interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and any interest on the Securities
of that series are payable as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form set forth in
either Exhibit A or Exhibit B to this Indenture or established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
6
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Sale and Leaseback Transaction" means the sale or transfer of any
property or asset owned by the Company or any Subsidiary with the intention of
taking back a lease on such property or asset.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
A "series" of Securities means all Securities denoted as part of the
same series authorized by or pursuant to a particular Board Resolution.
"Shareholders' Ownership" means as of any particular time the
consolidated capital and surplus (including retained earnings) of the Company
and its Subsidiaries, determined in accordance with generally accepted
accounting principles, as shown in the most recent monthly consolidated
financial statements of the Company and its Subsidiaries.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity Date," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more of its Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and in force at the date as of which this instrument was executed, except as
provided in Section 905.
"United States" means the United States of America (including the
states and the District of Columbia) and its "possessions" which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary
7
of a foreign estate or trust, or a foreign partnership one or more of the
members of which is, for United States federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
"U.S. Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as U.S. Depositary by the Company
pursuant to Section 301, which must be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, until a successor U.S. Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" shall mean the U.S. Depositary with respect to the
Securities of that series.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depository receipt.
"Vice President," when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president."
"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.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished. Every certificate or opinion (other than certificates
8
provided pursuant to Section 1005) with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person 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, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate, opinion or representations with respect to
the matters upon which his certificate or opinion is based is or are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate,
opinion or representations with respect to such matters is or are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of any series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing. Any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders
of such series may, alternatively, be embodied
9
in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of holders of Securities of such series duly
called and held in accordance with the provisions of Article Thirteen,
or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding
by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any meeting
of Holders of Securities shall be proved in the manner provided in
Section 1306.
Without limiting the generality of this Section 104, unless otherwise
established in or pursuant to a Board Resolution or one or more indentures
supplemental hereto pursuant to Section 301, a Holder, including a U.S.
Depositary that is a Holder of a permanent global Security, may make, give or
take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
this Indenture to be made, given or taken by Holders, and a U.S. Depositary that
is a Holder of a permanent global Security may provide its proxy or proxies to
the beneficial owners of interests in any such permanent global Security through
such U.S. Depositary's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any permanent global Security
held by a U.S. Depositary entitled under the procedures of such U.S. Depositary
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders. If such
a record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or take
such request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken more than 90 days
after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the
Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank,
10
banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security continues until
(i) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such
Bearer Security is surrendered in exchange for a Registered Security or
(iv) such Bearer Security is no longer Outstanding. The principal
amounts and serial numbers of Bearer Securities held by any Person, and
the date of holding the same, may also be proved in any other manner
which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Institutional Trust Services, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in Section
501(d)) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument, to the attention
of its Treasurer, or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein or as contemplated by
Section 301, where this Indenture provides for notice to Holders of Securities
of any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
11
(b) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and the second
such publication to be not later than the latest date, prescribed for
the giving of such notice, provided that both notices shall not be
published on the same Business Day.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein. Any notice mailed in the manner
prescribed by this Indenture shall be deemed to have been given whether or not
received by any particular Holder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act which is automatically deemed to be
included in this Indenture by any of the provisions of the Trust Indenture Act,
such provision of the Trust Indenture Act shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the former provision shall be deemed to
apply to this Indenture as so modified or excluded.
12
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind the Company's successors and assigns, whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the Company, the Trustee, their
successors hereunder, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based herein or
thereon or otherwise in respect hereof or thereof, shall be had against any
incorporator, stockholder, employee, agent, officer or director, as such, past,
present or future, of the Company or any successor corporation thereof, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely the corporate
obligations of the Company and that no personal liability whatever shall attach
to, or is or shall be incurred by, any incorporator, stockholder, employee,
agent, officer or director, as such, past, present or future, of the Company or
any successor corporation thereof, either directly or indirectly through the
Company or any successor corporation thereof because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or coupons or implied herefrom or therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, employee, agent, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or coupons or implied herefrom or therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of such Securities and coupons.
13
SECTION 114. GOVERNING LAW.
The Indenture, the Securities and the coupons shall be governed by and
construed in accordance with the internal laws (as opposed to conflicts of laws
provisions) of the State of Ohio, provided, however, that the immunities and
standard of care of the Trustee in connection with the administration of its
trust hereunder shall be governed by and construed in accordance with the laws
of the State of New York.
SECTION 115. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity Date of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of any interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity Date, provided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity Date, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series shall be in substantially the forms set forth
in Exhibits A or B to this Indenture (in the case of Registered Securities), or
in such form (in the case of Bearer Securities) or such other form (in the case
of Registered Securities)(including permanent global form) as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or to conform to usage, as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons. If
temporary Securities of any series are issued in global form as permitted by
Section 304, the form thereof shall be established as provided in the preceding
sentence. Unless otherwise contemplated by Section 301, Bearer Securities shall
have interest coupons attached which coupons shall be in substantially the form
set forth in Exhibit D to this Indenture, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto.
Prior to the delivery of a Security of any series in any form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(1) a copy of the Board Resolution by or pursuant to which
such form of Security has been approved;
14
(2) a copy of the indenture supplemental hereto, if any, by or
pursuant to which the Security is to be issued; and
(3) an Officers' Certificate dated the date such Certificate
is delivered to such Trustee stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Securities in such form have been complied with.
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, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATES OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK, AS TRUSTEE
By
---------------------------------
Authorized Officer
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form as contemplated
by Section 301, then, notwithstanding Section 301(k) and the provisions of
Section 302, any such Security shall represent such of the Outstanding
Securities of such series having the same terms as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
15
The provisions of the next to last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the next to last
sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global Security
or, in the case of a permanent global Security in bearer form, of Euro-clear or
Clearstream and produced to the Trustee by such Person.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered and Outstanding under this Indenture is unlimited.
The Securities may be issued hereunder from time to time in one or more
series each of which shall be issued pursuant to a Board Resolution or one or
more indentures supplemental hereto. With respect to any particular series of
Securities, the Board Resolution or indenture supplemental hereto relating
thereto shall specify:
(a) the title of the Securities of the series which shall
distinguish the Securities of the series from all other series of
Securities;
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form, with or without coupons and, if so, (i)
whether beneficial owners of interests in any such permanent global
Security or temporary global Securities may exchange such interest for
Securities of such series and of like tenor of any authorized
16
form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section
305, and (ii) the name of the Common Depositary or the U.S. Depositary,
as the case may be, with respect to any global Security or Securities;
(d) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(e) the date or dates (or the manner of determining the same)
on which the principal of the Securities of the series is payable
(which, if so provided in such Board Resolution or indenture
supplemental hereto, may be determined by the Company from time to time
and set forth in the Security of the series issued from time to time)
and whether such date or dates may be extended at the option of the
Company;
(f) the rate or rates (or formula for determining such rate or
rates) at which the Securities of the series shall bear interest, if
any, whether and under what circumstances additional amounts with
respect to such Securities as set forth in Section 1004 shall be
payable, the date or dates from which any such interest shall accrue
(which, in either case or both, if so provided in such Board Resolution
or indenture supplemental hereto, may be determined by the Company from
time to time and set forth in the Securities of the series issued from
time to time), the Interest Payment Dates on which any such interest
shall be payable (or the manner of determining the same), and the
Regular Record Date for any interest payable on any Registered
Securities on any Interest Payment Date and the extent to which, or the
manner in which, any interest payable on a temporary global security on
an Interest Payment Date will be paid if other than in the manner
provided in Section 304;
(g) whether the interest rate or interest rate formula, as the
case may be, for Securities of the series may be reset at the option of
the Company and, if so, the date or dates on which such interest rate
or interest rate formula, as the case may be, may be used;
(h) the place or places where, subject to the provisions of
Section 1002, the principal of and any premium and interest on and any
additional amounts with respect to Securities of the series as set
forth in Section 1004 shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, any
Securities of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(i) the period or periods within which, the price or prices at
which, the currency or currency unit in which, and the terms and
conditions upon which Securities
17
of the series may be redeemed, in whole or in part, at the option of
the Company or repaid at the option of the Holders;
(j) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof (in which
case the Company will comply with the requirements of Section 14(e) and
Rule 14e-1 under the Securities Exchange Act of 1934, as amended, in
connection therewith, if then applicable) and the period or periods
within which, the price or prices at which, the currency or currency
unit in which, and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(k) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denomination or denominations in
which any Bearer Securities of the series shall be issuable, if other
than the denomination of $5,000;
(l) the currency or currencies, including composite currencies
or currency units, in which payment of the principal of and any premium
and interest on and any additional amounts with respect to the
Securities of the series as set forth in Section 1004 shall be payable
if other than Dollars and, if other than as set forth in Section 101,
the method of calculating the Market Exchange Rate;
(m) if the amount of payments of principal of and any premium
or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(n) if other than the principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(o) any additional Events of Default or covenants with respect
to Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein and the applicability of Section 1010 to such covenants;
(p) if a Person other than JPMorgan Chase Bank is to act as
Trustee for the Securities of the series, the name and location of the
Corporate Trust Office of such Trustee;
(q) the extent and manner, if any, to which payment on or in
respect of Securities of the series will be senior or will be
subordinated to the prior payment of other liabilities and obligations
of the Company;
(r) if other than as set forth in Section 401, provisions for
the satisfaction and discharge of this Indenture with respect to the
Securities of the series;
18
(s) if so provided, the inapplicability of Section 1008 or
1009 to the Securities of the series;
(t) the date as of which any Bearer Securities of that series
and any global Security representing Outstanding Securities of that
series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(u) if so provided, the inapplicability, of Section 1011 to
the Securities of the series; and
(v) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above or in any such
indenture supplemental hereto. The terms of such Securities, as set forth above,
may be determined by the Company from time to time if so provided in or
established pursuant to the authority granted in a Board Resolution or in any
such indenture supplemental hereto. All Securities of any one series need not be
issued at the same time, and unless otherwise provided, a series may be reopened
for issuance of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the deliveries contemplated by Section
201.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000,
and Registered and Bearer Securities shall be payable in Dollars.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any of its
Chairman of the Board, its President, one of its Vice Presidents, its Treasurer
or one of its Assistant Treasurers, under its corporate seal reproduced thereon
and attested to by its Secretary or any one of its Assistant or Deputy
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of any such
officer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
19
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its sale, during the "restricted period" (as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no
Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided, further, that such Bearer Security (other than a
temporary global Security in bearer form) may be delivered outside the United
States in connection with its sale only if the Person entitled to receive such
Bearer Security shall have furnished to Euro-clear or Clearstream a certificate
substantially in the form set forth in Exhibit C.1 to this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to constitute, for the
purposes of the preceding sentence, delivery of a Bearer Security. Each Bearer
Security and any coupons appertaining thereto will bear a legend substantially
to the following effect: "Any United States person who holds this obligation
will be subject to limitations under the United States income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Except as permitted by Section 304 or 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled. If all the
Securities of any one series are not to be issued at one time and if a Board
Resolution relating to such Securities shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance of such
Securities, including, without limitation, procedures with respect to
establishing the interest rate, Stated Maturity Date, date of issuance and date
from which interest, if any, shall accrue.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 201, that such forms have been established in conformity with
the provision of this Indenture;
(b) if the terms of such Securities and any coupons (or the
manner of determining such terms) have been established by or pursuant
to a Board Resolution as permitted by Section 301, that such terms (or
the manner of determining such terms) have been established in
conformity with the provisions of this Indenture;
(c) that Securities, together with any coupons appertaining
thereto, when (x) completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, (y) authenticated and delivered by the
Trustee in accordance with this Indenture within the authorization as
to aggregate principal amount established from time to time by the
Board of Directors and
20
(z) sold by the Company in the manner specified in such Opinion of
Counsel, will constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws relating to or affecting creditors' rights
generally, to general equitable principles, to an implied covenant of
good faith and fair dealing and to such other qualifications as such
counsel shall conclude do not materially affect the rights and Holders
of such Securities, or, such Opinion of Counsel, at the option of the
opinion giver, may state that it is governed by, and shall be
interpreted in accordance with, the Legal Opinion Accord of the ABA
Section of Business Law then in effect; and
(d) such other matters as the Trustee may reasonably request.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Board Resolution otherwise
required pursuant to Section 301 or the Company Order, the Officers' Certificate
and Opinion of Counsel otherwise required pursuant to such preceding paragraphs
or Sections 102 and 201 at or prior to the authentication of each Security of
such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication,
and, unless otherwise contemplated by Section 301, each Bearer Security and any
temporary or permanent Bearer Security in global form shall be dated as of the
date of original issuance of the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security shall have been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Each U.S. Depositary designated pursuant to Section 301 for a global
Security in registered form must, at the time of its designation and at all
times while it serves as U.S.
21
Depositary, be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, in the manner specified in Section 303, temporary Securities which are
printed, lithographed, typewritten, photocopied or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued in registered form or, if authorized, in bearer
form with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities and coupons may determine, as evidenced by their
execution of such Securities. In the case of any series issuable as Bearer
Securities, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged only in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series (accompanied
by any unmatured coupons and matured coupons in default, if any, appertaining
thereto) the Company shall execute and (in accordance with a Company Order
delivered at or prior to the authentication of the first definitive Security of
such series) the Trustee shall authenticate and deliver in exchange therefor a
like aggregate principal amount of definitive Securities of the same series and
of like tenor of authorized denominations; provided, however, that no definitive
Bearer Securities shall be delivered in exchange for temporary Registered
Securities; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in Section 303. Until exchanged as hereinabove
provided, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series and with like terms and conditions, except as to payment of
interest, if any, authenticated and delivered hereunder.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and Clearstream, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security which (subject to any applicable laws and regulations) shall be after
the conclusion of the restricted period, as defined in Section 303, or within a
reasonable period of time thereafter (the "Exchange Date"), the
22
Company shall deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary global
Security, or, if so specified as contemplated by Section 301, a permanent global
Security, in either case, executed by the Company. On or after the Exchange Date
such temporary global Security shall be surrendered by the Common Depositary to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary global Security
shall be in definitive bearer form, definitive registered form, permanent global
bearer form, permanent global registered form or any combination thereof, as
specified as contemplated by Section 301, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided, however,
that, upon such presentation by the Common Depositary, such temporary global
Security is accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euro-clear as to the portion of such temporary global
Security held for its account then to be exchanged for a Bearer Security and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary global Security held for its
account then to be exchanged for a Bearer Security, each substantially in the
form set forth in Exhibit C.2 to this Indenture; provided, further, that
definitive Bearer Securities shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements of Section
303; and provided, further, that no definitive Bearer Securities shall be
delivered in exchange for temporary Registered Securities.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euro-clear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euro-clear or Clearstream, as the case may be, a
certificate substantially in the form set forth in Exhibit C.1 to this
Indenture, dated no earlier than 15 days prior to the Exchange Date, copies of
which certificate shall be available from the offices of Euro-clear and
Clearstream, the Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such temporary
global Security, exchange shall be made free of charge to the beneficial owner
of such temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or Clearstream. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euro-clear and
Clearstream on such Interest Payment Date upon delivery by Euro-clear and
Clearstream to the Trustee of a certificate or
23
certificates substantially in the form set forth in Exhibit C.2 to this
Indenture, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or Clearstream, as the case may be, a certificate
substantially in the form set forth in Exhibit C.1 to this Indenture. Any
interest so received by Euro-clear and Clearstream and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the Company
in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
With respect to the Securities of each series, the Company shall cause
to be kept at an office or agency to be maintained by the Company in accordance
with Section 1002 a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
Notwithstanding any other provision of this Section or Section 304,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a global Security representing all or a portion of the
Registered 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.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at any such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Bearer Securities may not be issued in
exchange for Registered Securities.
At the option of the Holder upon request confirmed in writing, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all
24
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company (or to
the Trustee in case of matured coupons in default) in an amount equal to the
face amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at any such office or agency
located outside the United States. Notwithstanding the foregoing, unless
otherwise specified as contemplated by Section 301, in case a Bearer Security of
any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (a) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (b) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as contemplated by Section 301, then without unnecessary delay
but in any event not later than the earliest date on which such interests may be
so exchanged, the Company shall deliver to the Trustee definitive Securities of
that series in aggregate principal amount equal to the principal amount of such
permanent global Security, executed by the Company. On or after the earliest
date on which such interests may be so exchanged, such permanent global
Securities shall be surrendered from time to time by the Common Depositary or
the U.S. Depositary, as the case may be, to be exchanged, in whole or in part,
for definitive Securities of the same series. Such surrender shall be in
accordance with instructions given to the Trustee and the Common Depositary or
the U.S. Depositary, as the case may be (which instructions shall be in writing
but need not comply with Section 102 or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose. The Trustee shall
25
authenticate and make available for delivery, in exchange for each portion of
such surrendered permanent global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such permanent global Security to be exchanged which
(unless the Securities of the series are not issuable both as Bearer Securities
and as Registered Securities, in which case the definitive Securities exchanged
for the permanent global Security shall be issuable only in the form in which
the Securities are issuable, as contemplated by Section 301) shall be in the
form of Bearer Securities or Registered Securities, or any combination thereof,
as shall be specified by the beneficial owner thereof; provided, however, that
no such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities of that series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Common Depositary or the U.S.
Depositary, as the case may be, or such other depositary or Common Depositary or
U.S. Depositary referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued in exchange for
any portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (a) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (b) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, such interest or Defaulted Interest will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of this Indenture.
If at any time the Depositary for Securities in registered form
notifies the Company that it is unwilling or unable to continue as Depositary
for such Securities or if at any time the Depositary for such Securities shall
no longer be eligible under Section 303, the Company shall appoint a successor
Depositary with respect to such Securities. If a successor Depositary for such
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301 shall no longer be effective with respect to
the Securities for such series and the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the global Security or Securities representing such series
in exchange for such global Security or Securities.
The Company 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 global
Securities shall no longer be represented by such global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and deliver Registered Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
26
If specified by the Company pursuant to Section 301 with respect to a
series of Securities in registered form, the Depositary for such series of
Securities may surrender a global Security for such series of Securities in
exchange in whole or in part for Securities of such series of like tenor and
terms and in definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person specified
by such Depositary a new Security or Securities of the same series, of like
tenor and terms and of any authorized denomination as requested by such
Depositary in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the global Security; and (ii) to such Depositary
a new global Security of like tenor and terms and in a denomination equal to the
difference, if any, between the principal amount of the surrendered global
Security and the aggregate principal amount of Securities delivered to Holders
thereof.
Upon the exchange of a global Security for Securities in definitive
form, such global Security shall be canceled by the Trustee. Registered
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Registered Security to the persons in whose names
such Securities are so requested.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written and duly
executed instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (i) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (ii) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (b) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (c) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that same series of a
27
like principal amount and tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITY AND COUPONS.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated
Security or in exchange for the Security to which a mutilated coupon appertains,
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such mutilated Security or to the
Security to which such mutilated coupon appertains.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon
(without surrender thereof except in the case of a mutilated Security or coupon)
if the applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and
any agent of any of them harmless, and in the case of destruction, loss or
theft, evidence satisfactory to the Company and the Trustee and any agent of
them of the destruction, loss or theft of such Security and the ownership
thereof; provided, however, that the principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for any mutilated Security, or in exchange for a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed,
28
lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and any such
new Security and coupons, if any, shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) any other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, provided, however that, except as otherwise
provided as contemplated by Section 301, interest payable at Maturity will be
payable to the Person to whom principal shall be payable.
Unless otherwise provided with respect to the Securities of any series,
payment of interest may be made at the option of the Company (i) in the case of
Registered Securities, by check mailed or delivered to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer to an account maintained by the payee with a bank located inside
the United States as specified in the Security Register, (ii) in the case of
Bearer Securities, except as otherwise provided in Section 1002, upon
presentation and surrender of the appropriate coupon appertaining thereto at an
office or agency of the Company in a Place of Payment located outside the United
States or by wire transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided or contemplated by Section 301, every
permanent global Security held by a Common Depositary will provide that
interest, if any, payable on any Interest Payment Date will be paid to each of
Euro-clear and Clearstream with respect to that portion of such permanent global
Security held for its account by the Common Depositary. Each of Euro-clear and
Clearstream will in such circumstances credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election, as
provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner:
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the
29
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at the address of such
Holder as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company, to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS.
Except as otherwise provided in Section 203, prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Registered Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. Except as otherwise provided in Section 203, the Company, the
Trustee and any agent of the Company or the Trustee may treat the bearer of any
Bearer Security and the bearer of any coupon as the absolute owner of such
Security or coupon for the purpose of receiving payment
30
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities and coupons so delivered shall be promptly
canceled by the Trustee. All Securities and coupons held by the Trustee pending
such cancellation shall be deemed to be delivered for cancellation for all
purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities and coupons held by the Trustee shall be disposed of by the Trustee
in accordance with its standard procedures and the Trustee shall furnish a
certificate of such disposition to the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise contemplated by Section 301 for Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months.
SECTION 311. APPOINTMENT AND RESIGNATION OF SUCCESSOR CURRENCY
DETERMINATION AGENT.
(a) If and so long as the Securities of any series (i) are
denominated in a currency unit or a currency other than Dollars or (ii)
may be payable in a currency unit or a currency other than Dollars, or
so long as it is required under any other provision of this Indenture,
then the Company will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent. The
Company will cause the Currency Determination Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and for the purpose of converting the
issued currency or currency unit into the applicable payment currency
or currency unit for the payment of principal (and premium, if any) and
interest, if any.
(b) No resignation or removal of the Currency Determination
Agent and no appointment of a successor Currency Determination Agent
pursuant to this Section shall become effective until the acceptance of
appointment by the successor Currency Determination Agent as evidenced
by a written instrument delivered to the Company and the Trustee
executed by the successor Currency Determination Agent.
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(c) If the Currency Determination Agent shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in
the office of the Currency Determination Agent for any cause, with
respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Currency
Determination Agent or Currency Determination Agents with respect to
the Securities of that or those series (it being understood that any
such successor Currency Determination Agent may be appointed with
respect to the Securities of one or more of all of such series and that
at any time there shall only be one Currency Determination Agent with
respect to the Securities of any particular series).
SECTION 312. CUSIP NUMBERS.
The Company 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 redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF
ANY SERIES PRIOR TO THE STATED MATURITY DATE OTHER THAN UPON
REDEMPTION.
With respect to any satisfaction, discharge or defeasance of Securities
of a series prior to the Stated Maturity Date or other than upon redemption as
contemplated by Section 405, unless otherwise specified as contemplated by
Section 301, on the 91st day after the deposit and payment referred to in (i)
and (ii) below and satisfaction of the other conditions set forth below: (a) the
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities of any such series; (b) the provisions of this
Indenture as it related to such Outstanding Securities shall no longer be in
effect (except (A) as to the rights of Holders of Securities to receive, from
the trust fund described in subparagraph (i) below, payment of (x) the principal
of (and premium, if any) and any installment of principal of (and premium, if
any) or interest, if any, on such Securities on the Stated Maturity Date of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest, if any, or (y) any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on that day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities or any optional redemption payments on any
Redemption Date irrevocably provided for in the trust agreement referred to
below, (B) the Company's obligations with respect to such Securities as provided
in the last sentence of this Section and (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, including those under Section 607
hereof); and (c) the Trustee, at the expense of the Company, shall, upon Company
Request, execute proper instruments acknowledging satisfaction and discharge of
such indebtedness.
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The conditions to the foregoing are as follows:
(A) all Securities theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (w) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in
Section 305, (x) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (y) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (z) Securities and coupons for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of such series,
with reference to this Section 401, the Company has deposited
or caused to be deposited with the Trustee irrevocably (but
subject to the provisions of Section 402 and the last
paragraph of Section 1003), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(1) lawful money of the United States (or, if the Securities
of such series are payable in a currency other than Dollars,
lawful money of the payment currency) in an amount, or (2)
U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of
business on the due dates of any payment referred to in clause
(x) or (y) of this subparagraph (i)(B) lawful money of the
United States 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 and
discharge (x) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest on
the Outstanding Securities of that series on the Stated
Maturity Date of such principal or installment of principal or
interest and (y) any mandatory sinking fund payments or
analogous payments applicable to Securities of such series on
the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities; or any optional redemption payments on any
Redemption Date irrevocably provided for in the escrow trust
agreement referred to below; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Securities of such
series;
(i) the Company has paid or caused to be paid all other
sums payable with respect to the Outstanding
Securities of such Series;
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(ii) such deposit will not result in a breach or violation
of, or constitute a default under this Indenture or
any other agreement or instrument to which the
Company is a party or by which it is bound;
(iii) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of
that series shall have occurred and be continuing on
the date of such deposit and no Event of Default
under Section 501(e) or Section 501(f) or event which
with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 501(e)
or Section 501(f) shall have occurred and be
continuing on the 91st day after such deposit;
(iv) the Company has delivered to the Trustee an Opinion
of Counsel or a ruling from or published by the
United States Internal Revenue Service, to the effect
that Holders of Securities of such series 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 and in the same manner and at the
same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
(v) if the Securities of that series are then listed on
any domestic or foreign securities exchange, the
Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such
Securities to be delisted; and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for
relating to the satisfaction and discharge of the
entire indebtedness on all Outstanding Securities of
any such series have been complied with and an
Opinion of Counsel to the effect that either (A) as a
result of such deposit and the related exercise of
the Company's option under this Section 401,
registration is not required under the Investment
Company Act of 1940, as amended, by the Company, the
trust funds representing such deposit or the Trustee
or (B) all necessary registrations under said Act
have been effected.
Any deposits with the Trustee referred to in Section 401(i)(B) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form satisfactory to the Trustee. If any Outstanding Securities of
such series are to be redeemed prior to their Stated Maturity Date, whether
pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company shall make such irrevocable arrangements as are
satisfactory to the
34
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 401
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company and the Holders of the Securities of such series and
any related coupons shall look for payment only to the funds or obligations
deposited with the Trustee pursuant to this Section 401; provided, however, that
in no event shall the Company be discharged from (i) any payment obligations in
respect of Securities of such series which are deemed not to be Outstanding
under clause (c) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) any obligations to
the Trustee under Sections 402(b), 607, 610, 611, 1004, 1011 and the last
paragraph of Section 1003 and (iii) from any obligations under Sections 304, 305
and 306 (except such Securities issued upon registration of transfer or exchange
or in lieu of mutilated, destroyed, lost or stolen Securities and any related
coupons shall not be obligations of the Company) and Sections 516, 701, 1002,
1003 and 1004.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 or
1011 shall be held irrevocably in trust and shall be made under the
terms of an escrow trust agreement in form satisfactory to the Trustee
and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture and such escrow trust agreement, to the
payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium, if any)
and any interest for whose payment such money has been deposited with
the Trustee.
(b) The Company shall pay and shall indemnify the Trustee for
any series of Securities against any tax, fee or other charge imposed
on or assessed against U.S. Government Obligations deposited pursuant
to Section 401 or Section 1011 or the interest and principal received
in respect of such U.S. Government Obligations other than any such tax,
fee or other charge which by law is payable by or on behalf of Holders.
The obligation of the Company under this Section 402(b) shall be deemed
to be an obligation of the Company under Section 607(b).
SECTION 403. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon compliance by the Company with the provisions of Section 401 or
Section 405 as to the satisfaction and discharge of each series of Securities
issued hereunder, and if the Company has paid or caused to be paid all other
sums payable under this Indenture and if the Company shall have determined not
to issue any additional series of Securities hereunder and shall have given
notice of such determination to the Trustees for all series of Securities, this
Indenture shall cease to be of any further effect (except as otherwise provided
herein). Upon Company Request and receipt of an Opinion of Counsel and an
Officers' Certificate complying
35
with the provisions of Section 102, the Trustees for all series of Securities
(at the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
SECTION 404. REINSTATEMENT.
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 401 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture,
the Securities and the coupons, if any, appertaining thereto shall be revived
and reinstated as though no deposit had occurred pursuant to Section 401 until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal of or any premium or interest on any
Securities or coupons because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities or
coupons to receive such payment from the money or U.S. Government Obligations
held by the Trustee.
SECTION 405. SATISFACTION AND DISCHARGE OF SECURITIES OF A
SERIES AT THE STATED MATURITY DATE OR UPON
REDEMPTION.
If at any time (a) the Company shall have delivered or caused to be
delivered to the Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 306), and not theretofore cancelled, or (b) all Securities of such
series not theretofore delivered to the Trustee for cancellation shall have
become due and payable (either upon the Stated Maturity Date or upon
redemption), and the Company shall deposit with the Trustee as trust funds the
entire amount sufficient to pay at the Stated Maturity Date or upon redemption
all Securities of such series (other than any Securities of such series which
shall have been mutilated, destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 306) not theretofore delivered to the
Trustee for cancellation, including principal and premium, if any and interest,
if any, due to such Stated Maturity Date or Redemption Date, as the case may be,
such funds to be immediately due and payable to the Holders of the Securities of
such series, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, and shall deliver to the
Trustee an Officers' Certificate stating that all conditions precedent to the
satisfaction and discharge of the entire indebtedness on all Outstanding
Securities of such series have been complied with, and an Opinion of Counsel to
the same effect, then this Indenture with respect to such series shall cease to
be of further effect, and the Trustee, at the expense of the Company, shall,
upon Company Request, execute proper instruments acknowledging satisfaction of
and discharge of such indebtedness.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (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 interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable bankruptcy law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other
37
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
bankruptcy law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of its property or the making by it
of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(g) any other Event of Default provided with respect to the
Securities of such series as contemplated by Section 301.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series occurs
and is continuing then in every such case either the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series may declare the entire principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal amount (or specified amount),
together with any accrued interest and all other amounts owing thereunder or
hereunder, shall become immediately due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if all
Events of Default with respect to Securities of that series, other than
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513 and all amounts owing under Section 607 have been paid.
No such rescission shall affect any subsequent default or impair any
right consequent thereof.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
38
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and any interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 607.
Until such demand is made by the Trustee, the Company may pay the
principal of (and premium, if any) and interest, if any, on the Securities to
the Persons entitled thereto, whether or not the principal (and premium, if any)
and interest, if any, on the Securities are overdue.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceedings to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities, or to the property of the Company or such other obligor, or to their
creditors, 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 on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and any interest owing and unpaid in
respect of the Securities and to file such other papers as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
all other amounts due to the Trustee
39
under Section 607) and of the Holders of Securities and coupons allowed
in such judicial proceedings;
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and
(c) unless prohibited by law or applicable regulation, to vote
on behalf of the Holders of the Securities in any election of a trustee
in bankruptcy or other person performing similar functions;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amounts due to it for reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due to the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for
the Securities to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of
any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or coupon in any such proceeding, except, as
aforesaid, for the election of a trustee in bankruptcy or other person
performing similar functions.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS.
All rights of action and claims under this Indenture or the Securities
or the coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due the Trustee under Section 607, be for the
ratable benefit of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: to the payment of the amounts due the Trustee under Section 607;
SECOND: to the payment of the amounts then due and unpaid for principal
of (and premium, if any) and any interest on the Securities and coupons in
respect of which or for the
40
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities and coupons for principal (and premium, if any) and any interest,
respectively; and
THIRD: the balance, if any, to the Person or Persons entitled thereto.
SECTION 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) an Event of Default with respect to such series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee of such continuing Event of Default with
respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) any interest on such Security or payment of such coupon
on the Stated Maturity Date or Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
41
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or expose the Trustee to personal liability
or be unduly prejudicial to Holders not joining therein, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all of the
Securities of such series and any related
42
coupons waive any past default hereunder with respect to the Securities of such
series and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
any interest on any Security of such series or any related coupon, or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Securities of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR 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 (other than the Trustee) 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 (subject to
applicable laws) not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder of
any Security or coupon for the enforcement of the payment of the principal (or
premium, if any) or any interest on any Security or the payment of any coupon on
or after the Stated Maturity Date or Maturities expressed in such Security or
coupon (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 516. JUDGMENT CURRENCY.
If, for the purpose of obtaining a judgment in any court with respect
to any obligation of the Company hereunder or under any Security or any related
coupon, it shall become necessary
43
to convert into any other currency or currency unit any amount in the currency
or currency unit due hereunder or under such Security or coupon, then such
conversion shall be made by the Currency Determination Agent at the Market
Exchange Rate as in effect on the date of entry of the judgment (the "Judgment
Date"). If pursuant to any such judgment, conversion shall be made on a date
(the "Substitute Date") other than the Judgment Date and there shall occur a
change between the Market Exchange Rate as in effect on the Judgment Date and
the Market Exchange Rate as in effect on the Substitute Date, the Company agrees
to pay such additional amounts (if any) as may be necessary to ensure that the
amount paid is equal to the amount in such other currency or currency unit
which, when converted at the Market Exchange Rate as in effect on the Judgment
Date, is the amount due hereunder or under such Security or coupon. Any amount
due from the Company under this Section 516 shall be due as a separate debt and
is not to be affected by or merged into any judgment being obtained for any
other sums due hereunder or in respect of any Security or coupon. In no event,
however, shall the Company be required to pay more in the currency or currency
unit due hereunder or under such Security or coupon at the Market Exchange Rate
as in effect on the Judgment Date than the amount of currency or currency unit
stated to be due hereunder or under such Security or coupon so that in any event
the Company's obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, and the
Company shall be entitled to withhold (or be reimbursed for, as the case may be)
any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to a series of Securities;
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture with respect to such series, and no implied
covenants or obligations with respect to such series shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision 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) In case an Event of Default with respect to a series of
Securities has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture with
respect to such series, 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.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series, determined as
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit to the
Holders of Securities of such series in the manner and to the extent provided in
Section 703(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of or any premium or
interest on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so as the board of directors, the
executive committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is in
the interest of the Holders of Securities of such series and related coupons;
and provided, further, that in the case of any default of the character
specified in Section 501(d) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term `default' means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
45
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
or as otherwise expressly provided herein and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
46
(h) the Trustee shall not be deemed to have knowledge of
a default or an Event of Default unless a Responsible Officer of the
Trustee has received notice thereof or has actual knowledge thereof.
SECTION 604. SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein (except the description of the Trustee)
and in the Securities (except the Trustee's certificates of authentication) and
in any coupons shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expense and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and its agents, including any
Authenticating Agent, for, and to hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance of
their
47
duties hereunder, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series, the Indenture
dated as of November 15, 1991, among Scripps Xxxxxx, Inc, as Issuer, The X.X.
Xxxxxxx Company, as Guarantor, and JPMorgan Chase Bank (formerly known as
Chemical Bank), as Trustee, and the Indenture dated as of September 29, 1997,
between The X.X. Xxxxxxx Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Trustee.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
any state thereof 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, subject to supervision or examination by federal or state
authority and, if there be such a corporation qualified and willing to act upon
customary and reasonable terms, having its Corporate Trust Office in Cincinnati,
Ohio or The City of New York. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Affiliate of the Company shall serve as Trustee for
the Securities. A different Trustee may be appointed by the Company for any
series of Securities prior to the issuance of such Securities. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of
48
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act pursuant to Section 608
hereof after written request therefor by the Company or any
Holder of a Security who has been a bona fide Holder of a
Security for at least six months, unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section
310(b) of the Trust Indenture Act, or
(ii) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one of more or all of
such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply
with the applicable requirements of Section 611. If, within sixty (60)
days after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith
49
upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by Section 611, and if the
Trustee is still incapable of acting, the Trustee or any Holder of a
Security who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject, nevertheless, to its lien, if any, provided for in
Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one of more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(iii) 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
50
constitute such Trustees as co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other
such Trustee. Upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, subject nevertheless to its lien, if any,
provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee thereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee or the Authenticating Agent then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee, or successor Authenticating Agent, (if eligible under Section 614), as
the case may be, may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee or successor
Authenticating Agent had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as
defined in Subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the Holders
51
of the Securities and coupons and the holders of other
indenture securities, as defined in Subsection (c) of this
Section:
(iv) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the beginning
of such three months' period and valid as against the Company
and other creditors of the Company, except any such reduction
resulting from the receipt or disposition of any property
described in paragraph (ii) of this Subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or
against the Company upon the date of such default; and
(v) all property received by the Trustee in respect
of any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount equal
to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and other
creditors of the Company in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (1) payments made on
account of any such claim by any Person (other than
the Company) who is liable thereon, and (2) the
proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (3) distributions
made in cash, securities or other property in respect
of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization
pursuant to any applicable bankruptcy law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such
property was so held prior to the beginning of such
three months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim,
if such claim was created after the beginning of such
three months' period and such property was received
as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden
of proving that at the time such property was so
received the Trustee had no reasonable cause to
believe that a default, as defined in Subsection (c)
of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any
property held as security for such claim as provided
in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
52
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders of Securities and the holders of other indenture
securities in such manner that the Trustee, the Holders of Securities and the
holders of other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to any
applicable bankruptcy law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of the
receipt by it from the Company of the funds and property in such special account
and before crediting to the respective claims of the Trustee and the Holders of
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to any applicable bankruptcy law, but after crediting
thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to any applicable bankruptcy law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (x) to apportion among the
trustee, the Holders of Securities and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (y) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders of Securities and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such three months' period; and
53
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from:
(iii) the ownership or acquisition of securities
issued under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(iv) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders of
Securities at the time and in the manner provided in this
Indenture;
(v) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(vi) an indebtedness created as a result of services
rendered or premises rented, or an indebtedness created as a
result of goods or securities sold in cash transaction, as
defined in Subsection (c) of this Section;
(vii) the ownership of stock or of other securities
of a corporation organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, which is
directly or indirectly a creditor of the Company; and
(viii) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(i) the term "default" means any failure to make
payment in full of the principal of (or premium, if any) or
interest on any of the Securities or upon the other indenture
securities when and as such principal, premium or interest
becomes due and payable;
(ii) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture or under this Indenture with respect
to the Securities of any other series (A) under which the
Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of this Section, and
(C) under which a default exists at the time of the
apportionment of the funds and property held in such special
account;
54
(iii) the term "cash transaction" means any
transaction in which full payment for goods or securities sold
is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
(iv) the term "self-liquidating paper" means any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or
obligation; and
(v) the term "Company" means any obligor upon the
Securities.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any state thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall be the successor of
the Authenticating Agent hereunder, provided such corporation shall be otherwise
55
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company in the manner set forth in Section 105.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall provide notice of such appointment to all Holders of Securities in the
manner set forth in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK, AS TRUSTEE
By
------------------------------------------
As Authenticating Agent
By
------------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of each Series:
(a) semi-annually, not more than 15 days after each January 15
and July 15, a list, in such form as the Trustee may reasonably
require, containing all the information in
56
the possession or control of the Company or any of its Paying Agents
other than the Trustee, as to the names and addresses of the Holders of
Securities as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided that no such lists shall be required to be furnished so long as the
Trustee is acting as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of
Securities of each Series (i) contained in the most recent lists
furnished to the Trustee as provided in Section 701, (ii) received by
the Trustee in its capacity as Security Registrar, if so acting, and
(iii) filed with it within the two preceding years pursuant to Section
703(c)(ii). The Trustee may (i) destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished, (ii)
destroy any information received by it as Paying Agent, if so acting,
upon delivering to itself as Trustee, not earlier than January 15 or
July 15, a list containing the names and addresses of the Holders of
Securities obtained from such information since the delivery of the
next previous list, if any, (iii) destroy any list delivered to itself
as Trustee which was compiled from information received by it as Paying
Agent, if so acting, upon the receipt of a new list so delivered, and
(iv) destroy not earlier than two years after filing any information
filed with it pursuant to Section 703(c)(ii).
(b) If three or more Holders of Securities of a series (herein
referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has
owned a Security of such series for a period of at least six months
preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders of
Securities of such series with respect to their rights under this
Indenture or under the Securities of such series and is accompanied by
a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election,
either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance
with Section 702(a), or
(ii) inform such applicants as to the approximate number
of Holders of Securities of such series whose names
and addresses appear in the information preserved at
the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other
communication, if any, specified in such application.
57
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request
of such applicants, mail to each Holder of Securities of such series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 702(a) a copy of the form of
proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to
be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after tender
the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders of Securities of such
series or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain
any of such objections or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after notice
and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders of Securities of such
series with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance with
Section 702(b), regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section
702(b).
SECTION 703. REPORTS OF TRUSTEE.
(a) Within 60 days after November 15 of each year commencing
November 15, 2002, the Trustee shall, to the extent required by the
Trust Indenture Act, transmit by mail to the Holders of Securities, as
provided in Subsection (c) of this Section, a brief report dated as of
such date with respect to any of the following events which may have
occurred within the prior 12 months (but if no such event has occurred
within such period no report need be transmitted):
(iii) any change in its eligibility under Section 609 and
its qualifications under Section 608;
(iv) the creation of or any material change to a
relationship specified in Sections 310(b) through
310(b)(10) of the Trust Indenture Act;
(v) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of
58
such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that
of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such
advances so remaining unpaid that aggregate not more
than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(vi) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company
(or by any other obligor on the Securities) to the
Trustee in its individual capacity, on the date of
such report, with a brief description of any property
held as collateral security therefor, except an
indebtedness based upon a creditor relationship
arising in any manner described in Section
613(b)(ii), (iii), (iv) or (vi);
(vii) any change to the property and funds, if any,
physically in the possession of the Trustee as such
on the date of such report;
(viii) any additional issue of Securities which the Trustee
has not previously reported; and
(ix) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously
reported and which in its opinion materially affects
the Securities, except action in respect of a
default, notice of which has been or is to be
withheld by the Trustee in accordance with Section
602.
(b) The Trustee shall transmit to the Holders of Securities,
as provided in Subsection (c) of this Section, a brief report with
respect to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report
transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously
reported pursuant to this Subsection, except that the Trustee shall not
be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal
amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security
Register;
59
(ii) to such Holders of Bearer Securities as have, within
the two years preceding such transmission, filed
their names and addresses with the Trustee for that
purpose; and
(iii) except in the case of reports pursuant to Subsection
(b) of this Section, to each Holder of a Security
whose name and address is preserved at the time by
the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities, be filed by the Trustee with
each securities exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee
when any Securities are listed on any securities exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then one or both of them
shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Securities, in the manner and to the extent
provided in Section 703(c) with respect to reports pursuant to Section
703(a) such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (a) and (b)
of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
60
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC.; ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
validly existing under the laws of the United States, any state thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest, if any (including
all additional amounts, if any, payable pursuant to Section 1004) on,
and any sinking fund payment in respect of, all the Securities and the
related coupons and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
or any Subsidiary would become subject to a Mortgage which would not be
permitted by Section 1008 without equally and ratably securing the
Securities as provided therein, such successor corporation shall have
taken such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all Indebtedness
secured thereby pursuant to Section 1008; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
transaction and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Nothing contained in this Section 801 shall prevent the Company from
merging any other corporation (whether or not affiliated with the Company) into
the Company in a transaction in which the surviving entity is the Company or
acquiring by purchase or otherwise all or any part of the property or assets of
any other corporation or Person (whether or not affiliated with the Company).
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such
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consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default with respect to
any or all series of Securities (and if such Event of Default applies
to less than all series of Securities, stating each series to which
such Event of Default applies); or
(d) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance
of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(e) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(f) to secure the Securities; or
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(g) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(i) to add to the conditions, limitations and restrictions on
the authorized amount, form, terms or purposes of issue, authentication
and delivery of Securities, as herein set forth, other conditions,
limitations and restrictions thereafter to be observed; or
(j) to supplement any provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 401, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(k) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with the
Trust Indenture Act; or
(l) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture or any Security
issued hereunder, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, except
as otherwise specified as contemplated by Section 301, without the consent of
the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity Date of the principal of, or
any installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of any interest thereon (or
change the formula for determining the rate of interest thereon) or any
premium payable upon the redemption thereof, or change any obligation
of the Company to pay additional amounts pursuant to Section 1004, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or change
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the Place of Payment where, or change the coin or currency in which,
any principal or any premium or any interest on any Security is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity Date thereof (or, in
the case of redemption, or on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1304 for quorum or voting, or
(c) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 1002,
or
(d) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1010, or the deletion
of this proviso, in accordance with the requirements of Sections 611(b)
and 901(h).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(h)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every Holder
of Securities theretofore and thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities and except as provided in the following sentence, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest, if any, due in respect
of a temporary or permanent global Security, together with any additional
amounts payable in respect thereof, as provided in the terms and conditions of
such Security, shall be payable, subject to the conditions set forth in Section
1004, only upon presentation of such Security to the Trustee thereof for
notation thereon of the payment of such interest; provided, however, that, in
the case of Bearer Securities, such presentation shall be made to the Trustee
only outside the United States unless payment in Dollars of the full amount of
such interest or any additional amounts payable in respect thereof at all
offices or agencies outside the United States maintained for that purpose by the
Company in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
Except as otherwise specified as contemplated by Section 301, if Securities of a
series are issuable as Bearer Securities, the Company will maintain (a) in the
Borough of Manhattan, The City of New York, or Cincinnati, Ohio, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (b) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Securities of that series pursuant to Section
1004); provided, however, that if the Securities of that series are listed on
the London Stock Exchange, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (c) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United States
an office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee and the Holders of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at the offices outside the United States
specified in the Security, and the Company hereby appoints the same as its agent
to receive such respective presentations, surrenders, notices and demands.
Except as otherwise specified as contemplated by Section 301, no
payment of principal of and any premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by wire transfer to an account
maintained with a bank located in the United States, provided, however, that, if
the Securities of a series are denominated and payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the
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Company's Paying Agent in the Borough of Manhattan, The City of New York, or
Cincinnati, Ohio, if (but only if) payment in Dollars of the full amount of such
principal of and any premium, interest or additional amounts, as the case may
be, at all offices or agencies outside the United States maintained for that
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations or approve a change in location of any such other office or
agency; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
and the Holders of any such designation or rescission and of any change in the
location of any such other office or agency.
Except as otherwise specified as contemplated by Section 301, the
Company hereby appoints the Trustee as the initial Paying Agent and designates
the Corporate Trust Office of the Trustee as its office for the purposes of and
pursuant to this Section 1002.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of and any premium or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal of and any premium or interest on the
Securities of that series; and
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(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or any coupon appertaining thereto shall,
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be given in the manner and to the extent
provided by Section 106 notice that such money remains unclaimed and that, after
a date specified therein which shall not be less than 30 days from the date of
such notification, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of
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principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. STATEMENTS AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the principal executive
officer, principal financial officer or principal accounting officer of the
Company stating that:
(1) a review of the activities of the Company during such
year and of performance under this Indenture has been
made under his supervision; and
(2) to the best of his knowledge, based on such review,
the Company is (or is not) in compliance with all
conditions and covenants under this Indenture, and if
the signer has obtained knowledge of any default by
the Company in the performance, observance or
fulfillment of any such condition or covenant,
specifying each such default and the nature and
status thereof.
For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 1006. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1007. PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on the London
Stock Exchange and such stock exchange shall so require, the Company will not,
and will not permit any of its Subsidiaries to, purchase any Securities of that
series by private treaty at a price (exclusive of expenses and accrued interest)
which exceeds 120% of the mean of the nominal quotations of the
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Securities of that series as shown in The Stock Exchange Daily Official List for
the last trading day preceding the date of purchase.
SECTION 1008. LIENS ON ASSETS.
Except as hereinafter provided in this Section 1008, so long as any
Security shall remain Outstanding, the Company will not, and will not permit any
Subsidiary to, create or suffer to exist any Mortgage, or otherwise subject to
any Mortgage the whole or any part of any property or assets now owned or
hereafter acquired by any of them, without securing, or causing such Subsidiary
to secure, the Outstanding Securities, and any Indebtedness of the Company and
such Subsidiary which may then be outstanding and entitled to the benefit of a
covenant similar in effect to this covenant, equally and ratably with the
Indebtedness secured by such Mortgage, for as long as any such Indebtedness is
so secured. The foregoing covenant does not apply to the creation, extension,
renewal or refunding of the following:
(a) any Mortgage on any property of a corporation existing at
the time such corporation is merged into or consolidated with, or at
the time such corporation becomes a Subsidiary of, the Company or any
Subsidiary or at the time of a sale, lease or other disposition of the
assets of a corporation or other entity as an entirety or substantially
as an entirety to the Company or such Subsidiary; provided, however,
that such Mortgage does not spread (i) to other property at such time
owned by the Company or any of its Subsidiaries or (ii) with respect to
a merger or consolidation only, to other property thereafter acquired;
(b) any Mortgage (i) on any property acquired or constructed
by the Company or any Subsidiary to secure all or a portion of the
price of such acquisition or construction or funds borrowed to pay all
or a portion of the price of such acquisition or construction
(including any Capitalized Lease Obligation) or (ii) to which any
property or asset acquired by the Company or any Subsidiary is subject
as of the date of its acquisition by the Company or such Subsidiary;
(c) any Mortgage to secure public or statutory obligations or
with any governmental agency at any time required by law in order to
qualify the Company or any Subsidiary to conduct its business or any
part thereof or in order to entitle it to maintain self-insurance or to
obtain the benefits of any law relating to workers' compensation,
unemployment insurance, old age pensions or other social security, or
with any court, board, commission, or governmental agency as security
incident to the proper conduct of any proceeding before it, including
any Mortgage securing a letter of credit issued in the ordinary course
of business in connection with any of the foregoing;
(d) any Mortgage securing the performance of bids, tenders,
leases, contracts (other than for the repayment of borrowed money),
statutory obligations, surety and appeal bonds and other obligations of
like nature, incurred as an incident to and in the ordinary course of
business;
(e) any Mortgage imposed by law, such as carriers',
warehousemen's, mechanics', materialmen's suppliers', repairmen's and
vendors' liens, incurred in good
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faith in the ordinary course of business with respect to obligations
not delinquent or which are being contested in good faith by
appropriate proceedings and as to which the Company or the relevant
Subsidiary, as the case may be, shall have set aside on its books
adequate reserves;
(f) any Mortgage securing the payment of taxes, assessments
and governmental charges or levies, either (i) not delinquent or (ii)
being contested in good faith by appropriate legal or administrative
proceedings and as to which the Company or the relevant Subsidiary, as
the case may be, shall have set aside on its books adequate reserves;
(g) any Mortgage created by or resulting from any litigation
or proceeding which is currently being contested in good faith by
appropriate proceedings and as to which (i) levy and execution have
been stayed and continue to be stayed and (ii) the Company or the
relevant Subsidiary, as the case may be, shall have set aside on its
books adequate reserves; and
(h) any Mortgage securing Indebtedness of a wholly owned
Subsidiary to the Company or to another wholly owned Subsidiary for so
long as such Indebtedness is held by the Company or such other wholly
owned Subsidiary, in each case subject to no Mortgage held by a Person
other than the Company or such other wholly owned Subsidiary.
Notwithstanding the foregoing restrictions of this Section 1008, the
Company and any Subsidiary may at any time create or suffer to exist any
Mortgage which would otherwise be subject to the foregoing restrictions if the
aggregate principal amount of Indebtedness secured by such Mortgage, together
with (i) the aggregate principal amount of all other Indebtedness secured by
Mortgages of the Company and any of its Subsidiaries then outstanding which
would otherwise be subject to the foregoing restriction (not including
Indebtedness secured by Mortgages permitted to be created or exist under
paragraphs (a) through (h) above) and (ii) the aggregate in value of all Sale
and Leaseback Transactions entered into by the Company and any of its
Subsidiaries at such time which would be subject to the restrictions of Section
1009 except for the last sentence of such Section, does not at any time exceed
15% of Shareholders' Ownership.
SECTION 1009. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Subsidiary to, enter into
any Sale and Leaseback Transaction. This covenant shall not apply to any Sale
and Leaseback Transaction if:
(a) the lease in such Sale and Leaseback Transaction is a for
a period not exceeding three years and the Company or the Subsidiary
which is a party to such lease intends that its use of the property or
asset which is the subject of such Sale and Leaseback Transaction will
be discontinued on or before the expiration of such period;
(b) the sale or transfer of any property or asset subject to
such Sale and Leaseback Transaction is made prior to, at the time of,
or within 180 days after the later
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of the date of the acquisition (including acquisition through merger or
consolidation) of such property or asset or the completion of
construction or material improvement thereof;
(c) the Company or any Subsidiary shall apply an amount equal
to the value of the property or asset so leased (as determined in any
manner approved by the Board of Directors) to the retirement, within
180 days after the effective date of any such arrangement, of any
Securities or Indebtedness of the Company or its Subsidiaries that is
not subordinate in right of payment to the Securities; provided,
however, that the amount to be so applied to the retirement of any
Securities or such Indebtedness may be reduced by (i) the principal
amount of any Securities delivered within 180 days before or after the
effective date of any such arrangement to the Trustee for retirement
and cancellation, and (ii) the principal amount of any such
Indebtedness, other than Securities, retired (other than at maturity)
by the Company or a Subsidiary within 180 days before or after the
effective date of any such arrangement;
(d) the lease in such Sale and Leaseback Transaction secures
or relates to obligations issued by the United States, any state
thereof or the District of Columbia, or any department, agency or
instrumentality or political subdivision of any of the foregoing, or by
any other country or any department, agency or instrumentality or
political subdivision thereof, or any agent or trustee acting on behalf
of any of the foregoing or on behalf of the holders of obligations
issued by any of the foregoing, to finance the acquisition or
construction or material improvement of the property or asset so
leased; or
(e) the Sale and Leaseback Transaction is between or among the
Company and one or more Subsidiaries, or between or among Subsidiaries.
Notwithstanding the foregoing provisions of this Section 1009, the
Company and any Subsidiary may at any time enter into a Sale and Leaseback
Transaction which would otherwise be subject to the foregoing restrictions if
the aggregate in value of such Sale and Leaseback Transaction, together with (i)
the aggregate in value of all other Sale and Leaseback Transactions entered into
by the Company and any of its Subsidiaries at such time which would otherwise be
subject to the foregoing restriction (not including Sale and Leaseback
Transactions permitted to be entered into under paragraphs (a) through (e)
above) and (ii) the aggregate principal amount of all other Indebtedness secured
by Mortgages of the Company and any of its Subsidiaries then outstanding which
would be subject to the restrictions of Section 1008 except for the last
sentence of such Section, does not at any time exceed 15% of Shareholders'
Ownership.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
The Company may with respect to the Securities of a series omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 801(c) and 1006 to 1009, inclusive, and any other covenant not set
forth herein and specified pursuant to Section 301 to be applicable to the
Securities of any series if before the time for such compliance the Holders of
at least 66-2/3% in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect
72
such term, provision or condition except to the extent expressly so waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1011. DEFEASANCE OF CERTAIN OBLIGATIONS.
Unless this Section is specified, as contemplated by Section 301, to be
inapplicable to Securities of any series, the Company may omit to comply with
any term, provision or condition set forth in Sections 801(c), 1007, 1008 and
1009, and such omission with respect to Sections 801(c), 1007, 1008 and 1009,
shall not be an Event of Default, in each case with respect to Securities of
that series, provided that the following conditions have been satisfied:
(a) with reference to this Section, the Company has deposited
or caused to be deposited with the Trustee irrevocably (but subject to
the provisions of Section 402 and the last paragraph of Section 1003),
as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (i) lawful money of the United States (or, if the
Securities of such series are payable in a currency other than Dollars,
lawful money of the payment currency) in an amount, or (ii) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide not later than the opening of business on the due dates of any
payments referred to in clause (A) or (B) of this subparagraph (a)
lawful money of the United States in an amount, or (iii) 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 and discharge (A) the
principal of (and premium, if any) and each installment of principal
(and premium, if any) and any interest on the Outstanding Securities of
that series on the Stated Maturity Date of such principal or
installment of principal or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to Securities of such series
on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and such funds
have been deposited for 91 days;
(b) the Company has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities of such series;
(c) such deposit shall not in the Opinion of Counsel cause the
Trustee with respect to the Securities of that series to have a
conflicting interest as defined in Section 608 and for purposes of the
Trust Indenture Act with respect to the Securities of any series;
(d) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(e) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of
73
Default under Section 501(e) or Section 501(f) or event which with the
giving of notice or lapse of time, or both, would become an Event of
Default under Section 501(e) or Section 501(f) shall have occurred and
be continuing on the 91st day after such date;
(f) the Company has delivered to the Trustee an Opinion of
Counsel or a ruling from or published by the United States Internal
Revenue Service, to the effect that Holders of the Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred;
(g) if the Securities of that series are then listed on any
foreign or domestic securities exchange, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that such deposit and
defeasance will not cause such Securities to be delisted; and
(h) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated
in this Section have been complied with and an Opinion of Counsel to
the effect that either (i) as a result of such deposit and the related
exercise of the Company's option under this Section, registration is
not required under the Investment Company Act of 1940, as amended, by
the Company, the trust funds representing such deposit or the Trustee
or (ii) all necessary registrations under said Act have been effected.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity Date shall be redeemable in accordance with their terms and (except as
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In the case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 1103. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall
74
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series having the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Registered Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If so specified in the Securities of a series, partial redemptions must be in an
amount not less than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, or if not then ascertainable, the
manner of calculation thereof;
(c) if less than all the Outstanding Securities of any series
having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof to be
redeemed and, if applicable, the interest thereon will cease to accrue
on and after said date,
75
(e) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(f) that the redemption is for a sinking fund, if such is the
case,
(g) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished, and
(h) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date unless otherwise specified as
contemplated by Section 301) any accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and any accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security or
specified portions thereof shall be paid by the Company at the Redemption Price,
together with any accrued interest to the Redemption Date; provided, however,
that installments of interest on Bearer Securities whose Stated Maturity Date is
on or prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as
76
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity Date is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Sections 305 and 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in permanent global form is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the U.S. Depositary or Common
Depositary for such Security in permanent global form, without service charge, a
new Security in permanent global form in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Security in permanent global
form so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment" If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(b) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and shall state the basis for such credit and that such
Securities have not previously been so credited and will also deliver to the
Trustee any Securities to be so delivered (if not previously delivered). Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly
78
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any Securities for any purpose specified in Section 1301,
to be held at such time and at such place in the Borough of Manhattan,
The City of New York, Cincinnati, Ohio or London, England as the
Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not
less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any such series shall have requested the
Trustee to call a meeting of the Holders of Securities of such series
for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed notice of or made the
first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, the Company or the Holders of
Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, Cincinnati, Ohio or London for such
meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
79
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than
66-2/3% in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote 66-2/3% in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section shall be binding on all the Holders of
Securities of such series and the related coupons, whether or not present or
represented at the meeting.
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SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote and such other
matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulation, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 104 to certify
to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1302(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 (or equivalent
thereof in a foreign currency or currency unit) principal amount of
Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security
of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1302 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such Series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all
81
votes cast at the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1302 and, if applicable, Section 1304.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE X.X. XXXXXXX COMPANY
Attest:
--------------------------------
By:
------------------------------
Title:
-----------------------------
JPMORGAN CHASE BANK
Attest:
--------------------------------
By:
------------------------------
Title:
-----------------------------
82
STATE OF :
---------------------------
: ss:
COUNTY OF : :
-------------------------
On the __ day of ___________, 2002, before me personally came
___________ to me known, who, being by me duly sworn, did depose and say that he
is ________ of The X.X. Xxxxxxx Company, one of the corporations described in
and which executed the foregoing instrument, and that he signed his name thereto
by authority of the Board of Directors of said corporation.
(Seal)
-------------------------------------
Notary Public
STATE OF NEW YORK :
: ss:
COUNTY OF NEW YORK :
On the __th day of __________, 2002, before me personally came
___________________ to me known, who, being by me duly sworn, did depose and say
that he is _______________ of JPMorgan Chase Bank, a New York banking
corporation, one of the corporations described in and which executed the
foregoing instrument, and that she signed her name thereto by authority of the
Board of Directors of said corporation.
(Seal)
-------------------------------------
Notary Public
83
EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT
AN ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
THE X.X. XXXXXXX COMPANY No. [R-] [U.S.$][payment currency if not U.S.$]
[If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the Depositary,
insert--Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
Company or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO., or such other name
as requested by an authorized representative of The Depository Trust Company and
any payment is made to CEDE & CO. or to such other entity as is requested by an
authorized representative of The Depository Trust Company, ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, CEDE & CO., has an interest herein.]
ISSUE PRICE:
INITIAL REDEMPTION DATE:
ORIGINAL ISSUE DATE:
STATED MATURITY DATE:
BASE RATE:
INITIAL INTEREST RATE:
OPTION TO ELECT REPAYMENT: __ YES __NO
INDEX MATURITY:
OPTIONAL REPAYMENT DATES:
SPREAD (PLUS OR MINUS):
OPTIONAL REPAYMENT PRICES:
SPREAD MULTIPLIER:
OPTIONAL RESET DATES:
MAXIMUM INTEREST RATE:
OPTIONAL EXTENSION: __YES __NO
MINIMUM INTEREST RATE:
FINAL MATURITY:
INTEREST RESET PERIOD:
DEPOSITARY:
INTEREST RESET DATES:
REPAYMENT PROVISIONS (If applicable):
INTEREST PAYMENT DATES:
OTHER PROVISIONS:
THE X.X. XXXXXXX COMPANY, a corporation duly organized and existing
under the laws of Ohio (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ________________________, or
registered assigns, the principal sum of _______________ [United States Dollars]
[specify other payment currency if not payable in United States Dollars] on
_____________ and to pay interest thereon from _____________, [20__], or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for in arrears [If applicable, insert--; provided, however, that if
this Security has a weekly Interest Rate Reset Period, as shown above, such
interest will be paid from the Original Issue Date shown above or from the day
following the most recent Regular Record Date to which interest has been paid or
duly provided for in arrears]. Interest will be paid [semi-annually in arrears
on in each year] [annually in arrears on in each year] ([each] an "Interest
Payment Date") commencing ___________ [20__], at the rate of ____% per annum [or
describe formula to calculate rate, e.g. commercial paper rate], until the
principal hereof is paid or made available for payment. [If applicable,
insert--, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of ____% per annum on any overdue principal [and
premium] and on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the [or ] (whether
or not a Business Day) [, as the case may be,] next preceding such Interest
Payment Date; provided, however, that interest payable at Maturity will be
payable to the Person to whom principal shall be payable. The first payment of
interest on any Security originally issued between a Regular Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Regular Record Date to the registered owner on such Regular
Record Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
A-2
exchange on which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of [(and premium, if any)] and interest on
this Security will be made at [the office or agency of the Company maintained
for that purpose in __________________, in such coin or currency of [the United
States of America] [home country of payment currency if not United States
Dollars] as at the time of payment is legal tender for payment of public and
private debts] [the option of the Holder (a) at [the Corporate Trust Office of
the Trustee] or such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New York or
[__________] in such coin or currency of [the United States of America] [home
country of payment currency if not United States Dollars] as at the time of
payment shall be legal tender for the payment of public and private debts or (b)
subject to any laws or regulations applicable thereto and to the right of the
Company (limited as provided in the Indenture) to rescind the designation of any
such Paying Agent, at the [main] offices of in, ______________ in
______________, in _________________and in _________________, or at such other
offices or agencies as the Company may designate, by [United States Dollar]
[payment currency if not United States Dollars] check drawn on, or transfer to a
[United States Dollar] [payment currency if not United States Dollars] account
maintained by the payee with, a bank in The City of New York or [__________].]
[If applicable, insert--; provided, however, that at the option of the Company
payment of interest may be made by [United States Dollar] [payment currency if
not United States Dollars] check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register] [or by wire
transfer to an account maintained by such Person with a bank in the [continental
United States] (so long as the Paying Agent has received proper transfer
instructions in writing at least __ Business Days prior to the payment date)].
[If the registered owner of this Security is the Depositary or a
nominee of the Depositary, insert--THIS GLOBAL NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY 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 OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth in this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ___________________
THE X.X. XXXXXXX COMPANY
By
--------------------------------------
Authorized officer
[SEAL]
ATTEST:
-------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
JPMorgan Chase Bank, as Trustee JPMorgan Chase Bank, as Trustee
By or By , as
------------------------------ --------------------------------
Authorized Officer Authenticating Agent
By:
---------------------------------
Authorized Officer
A-4
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ____________, 2002 (herein called the
"Indenture"), between the Company and JPMorgan Chase Bank, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all Indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to
______________[U.S.$][payment currency if not U.S.$] ].
[If applicable, insert--Calculation of the Spread and Spread Multiplier
shall be done in accordance with the Indenture, as it may be amended or
supplemented to the date hereof.]
[If applicable, insert--The Securities of this series are subject to
redemption [(1)] [If applicable, insert--on in any year commencing with the year
and ending with the year through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, [and (2)] [If
applicable, insert--at any time [on or after ], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount). If redeemed [on or before
________________, _____%, and if redeemed] during the 12-month period beginning
of the years indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to _____ % of the principal amount,]
[If applicable, insert--[and (_______)] under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to 100% of the
principal amount,] together in the case of any such redemption [If applicable,
insert--(whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity Date is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this series are subject to redemption
(1) on in any year commencing with the year and ending with the year through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ____________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund
A-5
(expressed as percentages of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning of the years indicated, YEAR
REDEMPTION PRICES FOR REDEMPTION REDEMPTION PRICES FOR REDEMPTION OTHERWISE
THROUGH OPERATION OF THE SINKING FUND THAN THROUGH OPERATION OF THE SINKING FUND
and thereafter at a Redemption Price equal to % of the principal amount. [If
applicable, insert and (3) under the circumstances described in the next [two]
succeeding paragraph[s] at a Redemption Price equal to 100% of the principal
amount,] together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity Date is on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.] [Notwithstanding the foregoing, the Company
may not, prior to, redeem any Securities of this series as contemplated by
Clause [(2)] above as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than % per annum.]
[If applicable, insert The sinking fund for this series provides for
the redemption on in each year, beginning with the year and ending with the
year, of [not less than] [U.S.$][payment currency if not U.S.$] [("mandatory
sinking fund") and not more than [U.S.$][payment currency if not U.S.$]
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made[in the inverse order in which they
become due.]]
[If applicable, insert--The Securities of this series are not
redeemable prior to maturity.]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert--The Indenture contains provisions for
defeasance of (a) the entire indebtedness of this Security and (b) certain
restrictive covenants upon compliance by the Company with certain conditions set
forth therein.]
[If applicable, insert--If so specified on the face hereof, the
interest rate on this Security may be reset by the Company on the date or dates
specified on the face hereof (each an "Optional Reset Date"). Not later than
days prior to each Optional Reset Date, the Trustee will mail to the Holder of
this Security a notice (the "Reset Notice") first-class postage prepaid
indicating whether the Company has elected to reset the interest rate, and if so
(a) such new interest rate and (b) the provisions, if any, for redemption during
the period from such Optional Reset Date to the next Optional Reset Date or if
there is no such Optional Reset Date, to the Stated Maturity Date of this
Security (each such period a "Subsequent Interest Period"),
A-6
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
provided for in the Reset Notice and establish a higher interest rate for the
Subsequent Interest Period by causing the Trustee to mail notice of such higher
interest rate to the Holder of this Security. Such notice shall be irrevocable.
All Registered Securities with respect to which the interest rate is reset on an
Optional Reset Date will bear such higher interest rate.
The Holder of this Security will have the option to elect repayment by
the Company on each Optional Reset Date at a price equal to the principal amount
hereof plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the procedures set
forth below for optional repayment except that the period for delivery or
notification to the Trustee shall be at least but not more than days prior to
such Optional Reset Date and except that, if the Holder has tendered this
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the day before such Optional Reset Date.]
[If applicable, insert--If so specified on the face hereof, the
Maturity of this Security may be extended at the option of the Company for the
period or period of whole years specified on the face hereof (each an "Extension
Period") up to but not beyond the date (the "Final Maturity") set forth on the
face hereof. If the Company exercises such option, the Trustee will mail to the
Holder of this Security not later than days prior to the old Stated Maturity
Date a notice (the "Extension Notice") first-class postage prepaid indicating
(a) the election of the Company to extend the Maturity, (b) the new Stated
Maturity Date, (c) the interest rate applicable to the Extension Period and (d)
the provisions, if any, for redemption during such Extension Period. Upon the
Trustee's mailing of the Extension Notice, the Maturity of this Security shall
be extended automatically and, except as modified by the Extension Notice and as
described in the next paragraph, this Security will have the same terms as prior
to the mailing of such Notice.
Notwithstanding the foregoing, not later than days before the old
Stated Maturity Date of this Security the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to mail notice of
such higher interest rate first-class postage prepaid to the Holder of this
Security. Such notice shall be irrevocable. All Registered Securities with
respect to which the Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of this Security, the Holder will
have the option to elect repayment of this Security by the Company on the old
Stated Maturity Date at a price equal to the principal amount hereof, plus
interest accrued to such date. In order to obtain repayment on the old Stated
Maturity Date once the Company has extended the Maturity hereof, the Holder must
follow the procedures set forth below for optional repayment, except that the
period for delivery or notification to the Trustee shall be at least but not
more than days prior to the old Stated Maturity Date and except that, if the
Holder has tendered this Security for repayment pursuant to an Extension Notice,
the Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the day before the old Stated Maturity Date.]
A-7
[If applicable, insert--If so specified on the face hereof, this
Security will be repayable prior to Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with accrued interest to the date of
repayment. In order for this Security to be repaid, the Trustee must receive at
least but not more than days prior to an Optional Repayment Date (a) this
Security with the form entitled "Option to Elect Repayment" duly completed or
(b) a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Security, the principal amount of
the Security to be repaid, the certificate number or a description of the tenor
and terms of this Security, a statement that the option to elect repayment is
being exercised thereby and a guarantee that this Security with the form
entitled "Option to Elect Repayment" duly completed will be received by the
Trustee not later than Business Days after the date of such telegram, telex,
facsimile transmission or letter. If the procedure described in clause (b) of
the preceding sentence is followed, this Security with such form duly completed
must be received by the Trustee by such Business Day. Any tender of this
Security for repayment [(except pursuant to a Reset Notice or an Extension
Notice)] shall be irrevocable. The repayment option may be exercised by the
Holder of this Security for less than the entire principal amount of the
Security provided that the principal amount of the Security remaining
Outstanding after repayment is an authorized denomination. Upon such partial
repayment this Security shall be canceled and a new Security or Securities for
the remaining principal amount hereof shall be issued in the name of the Holder
of this Security.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in principal amount of the Securities at the
time outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer herefor or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless an
Event of Default with respect to this series shall have occurred and be
continuing and such Holder shall have previously given to the Trustee written
notice of such continuing Event of Default with respect to this series, the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series shall have made written request, and
A-8
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days after such notice, request and offer of indemnity;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of [(and
premium, if any)] or interest on this Security on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and interest on this Security at the times, place[s] and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in [any place where the principal of [(and
premium, if any)] and interest on this Security are payable] [the Borough of
Manhattan, The City of New York, [Cincinnati, Ohio] or, subject to any laws or
regulations applicable thereto and to the right of the Company (limited as
provided in the Indenture) to rescind the designation of any such transfer
agent, at the [main] offices of in and in or at such other offices or agencies
as the Company may designate], duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form,
without coupons in denominations of [U.S.$][payment currency if not U.S.$] and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of the series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
[If applicable, insert--If this Security is a global Security (as
specified on the face hereof), this Security is exchangeable only if (x) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for this global Security or if at any time the Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, or (y) the Company in its sole discretion determines that this Security
shall be exchangeable for definitive Securities in registered form provided that
the definitive Securities so issued in exchange for this permanent global
Security shall be in denominations of [U.S.$][payment currency if not U.S.$] and
any integral multiple of [$1,000] in excess thereof and be of like aggregate
principal amount and tenor as the portion of this permanent global Security to
be exchanged, and provided further that, unless the Company agrees otherwise,
Securities of this series in definitive registered form will be issued in
exchange for this permanent global Security, or any portion hereof, only if such
Securities in definitive registered form were requested by written notice to the
Trustee or the Security Registrar by or on behalf of a Person who is beneficial
owner of an interest hereof given through the Holder hereof. Except
A-9
as provided above, owners of beneficial interests in this permanent global
Security will not be entitled to receive physical delivery of Securities in
definitive registered form and will not be considered the Holders thereof for
any purpose under the Indenture.]
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice of the contrary.
This Security shall be governed by the internal laws (as opposed to
conflicts of laws provisions) of the State of Ohio.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT Custodian
------------------ -----------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
--------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
A-10
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------------------------
-------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
-------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing ________________________________ attorney
to transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated:
-----------------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
A-11
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN ORIGINAL ISSUE DISCOUNT
SECURITY]
[FORM OF FACE] FOR PURPOSES XX XXXXXXXX 0000 XXX 0000 XX XXX XXXXXX
XXXXXX INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS
SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS, [19 ][20 ],[AND] THE
YIELD TO MATURITY IS% [THE METHOD USED TO DETERMINE THE YIELD IS AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF, [19 ][20 ]
TO [19 ][20 ],IS% OF THE PRINCIPAL AMOUNT OF THIS SECURITY].THE X.X. XXXXXXX
COMPANY.
No. [R- ][U.S.$][payment currency if not U.S.$] [If the registered
owner of this Security (as indicated below) is The Depositary Trust Company (the
"Depositary") or a nominee of the Depositary, insert--Unless this certificate is
presented by an authorized representative of The Depositary Trust Company (55
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of CEDE & CO., or such other name as requested by an authorized
representative of The Depositary Trust Company and any payment is made to CEDE &
CO. or to such other entity as is requested by an authorized representative of
The Depository Trust Company, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
CEDE & CO., has an interest herein.]
ISSUE PRICE:
INITIAL REDEMPTION DATE:
ORIGINAL ISSUE DATE:
TOTAL AMOUNT OF OID:
STATED MATURITY DATE:
YIELD TO MATURITY:
BASE RATE:
INITIAL ACCRUAL PERIOD OID:
INITIAL INTEREST RATE:
OPTION TO ELECT REPAYMENT: YES NO
INDEX MATURITY:
OPTIONAL REPAYMENT DATES:
SPREAD (PLUS OR MINUS):
OPTIONAL REPAYMENT PRICES:
SPREAD MULTIPLIER:
OPTIONAL RESET DATES:
MAXIMUM INTEREST RATE:
OPTIONAL EXTENSION: YES NO
MINIMUM INTEREST RATE:
FINAL MATURITY:
INTEREST RESET PERIOD:
DEPOSITARY:
INTEREST RESET DATES:
REPAYMENT PROVISIONS (If applicable):
INTEREST PAYMENT DATES:
OTHER PROVISIONS:
THE X.X. XXXXXXX COMPANY, a corporation duly organized and existing
under the laws of Ohio (herein called "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to , or registered assigns the principal
sum of [United States Dollars] [specify other payment currency if not payable in
United States Dollars] on [If the Security is interest-bearing, insert , and to
pay interest thereon from ____________, [20__] or from the most recent Interest
Payment Date to which interest has been paid or duly provided for in arrears [If
applicable, insert--; provided, however, that if this Security has a weekly
Interest Rate Reset Period, as shown above, such interest will be paid from the
Original Issue Date shown above or from the day following the most recent
Regular Record Date to which interest has been paid or duly provided for in
arrears]. Interest will be paid [semi-annually in arrears on and in each year]
[annually in arrears on in each year] ([each]an "Interest Payment Date"),
commencing ______________, [20__] at the rate of _____% [or describe formula to
calculate rate, e.g. commercial paper rate] per annum, until the principal
hereof is paid or made available for payment. [If applicable, insert--, and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of _____% per annum on any overdue principal [and premium] and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the
B-2
[or ] (whether or not a Business Day) [, as the case may be,] next
preceding such Interest Payment Date; provided, however, that interest payable
at Maturity will be payable to the Person to whom principal shall be payable.
The first payment of interest on any Security originally issued between a
Regular Record Date and an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to the registered
owner on such Regular Record Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the Payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture]. [If the Security is not to bear interest prior to Maturity,
insert The principal of this Security shall not bear interest except in the case
of a default in payment of principal upon acceleration, upon redemption or at
Stated Maturity Date, and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
such principal was due to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.] Payment
of the principal of [(and premium, if any)] and [If applicable, insert any such]
interest on this Security will be made at [the office or agency of the Company
maintained for that purpose in, in such coin or currency of [the United States
of America] [home country of payment currency if not United States Dollars]as at
the time of payment is legal tender for payment of public and private debts]
[the option of the Holder (a) at [the Corporate Trust Office of the Trustee] or
such other office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, or [Cincinnati,
Ohio]], in such coin or currency of [the United States of America] [home country
of payment currency if not United States Dollars] as at the time of payment
shall be legal tender for the payment of public and private debts or (b) subject
to any laws or regulations applicable thereto and to the right of the Company
(limited as provided in the Indenture) to rescind the designation of any such
Paying Agent, at the (main) offices of in, in, in, in and in, or at such other
offices or agencies as the Company may designate, by [United States Dollar]
[payment currency if not United States Dollars] check drawn on, or transfer to a
[United States Dollar] [payment currency if not United States Dollars] account
maintained by the payee with a bank in The City of New York or [ ]] [If
applicable, insert--; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register] [or by
wire transfer to an account maintained by such Person with a bank in [the
continental United States] (so long as the Paying Agent has received proper
transfer instructions in writing at least __ Business Days prior to the payment
date)].
B-3
[If the registered owner of this Security is the Depositary or a
nominee of the Depositary, insert--
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY 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 OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: THE X.X. XXXXXXX COMPANY
-----------------------------
[SEAL] By
-------------------------------------
ATTEST: Authorized Officer
-----------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
JPMorgan Chase Bank, as Trustee JPMorgan Chase Bank, as Trustee
By or By , as
---------------------------------- ----------------------------------
Authorized Officer Authenticating Agent
By:
--------------------------------
Authorized Officer
B-4
[FORM OF REVERSE] This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of ____________, 2002
(herein called the "Indenture") among the Company and JPMorgan Chase Bank, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
[U.S.$][payment currency if not U.S.$]].
[If applicable, insert--Calculation of the Spread and Spread Multiplier
shall be done in accordance with the Indenture, as it may be amended or
supplemented to the date hereof.]
[If applicable, insert--The Securities of this series are subject to
redemption [(1) [If applicable, insert--on
in any year commencing with the year and ending with the year through
operation of the sinking fund for this series at a Redemption Price equal to
[Insert formula for determining the amount], [and] (2)] [If applicable,
insert--at any time [on or after, ], as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before
,%, and if redeemed] during the 12-month period beginning of YEAR
REDEMPTION PRICE and thereafter at a Redemption Price equal to% of the principal
amount,] [If applicable, insert--[and ( )] under the circumstances described in
the next [two] succeeding paragraph[s] at a Redemption Price equal to [Insert
formula for determining the amount]] [If the Security is interest-bearing,
insert , together in the case of any such redemption. [If applicable,
insert(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity Date is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption (1) on in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after _______, 20__ ], as a whole or in part, at the election of the Company,
at the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning of the years
indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
---- ---------------- ---- ----------------
B-5
REDEMPTION PRICE FOR REDEMPTION REDEMPTION PRICE FOR REDEMPTION
OTHERWISE YEAR THROUGH OPERATION OF THE SINKING FUND THAN THROUGH OPERATION OF
THE SINKING FUND
and thereafter at a Redemption Price equal to % of the principal amount. [If
applicable, insert-- and (3) under the circumstances described in the next [two]
succeeding paragraph[s] at a Redemption Price equal to [Insert formula for
determining the amount]] [If the Security is interest-bearing, insert--,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, the installments of interest on this Security whose Stated
Maturity Date is on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.] [Notwithstanding the foregoing, the Company
may not, prior to, redeem any Securities of this series as contemplated by
Clause [(2)] above as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than %, per annum.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on in each year, beginning with the year and ending with the year
, of [not less than] [U.S.$] [payment currency if not U.S.$][("mandatory sinking
fund") and not more than [U.S.$][payment currency if not U.S.$] aggregate
principal amount of Securities of this series.[Securities of this series
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent[mandatory] sinking fund
payments otherwise required to be made [in the inverse order in which they
become due.]]
[If applicable, insert--The Securities of this series are not
redeemable prior to maturity.]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof, will be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert--The Indenture contains provisions for
defeasance of (a) the entire indebtedness of this Security and (b) certain
restrictive covenants upon compliance by the Company with certain conditions set
forth therein.]
[If applicable, insert--If so specified on the face hereof, the
interest rate on this Security may be reset by the Company on the date or dates
specified on the face hereof (each an "Optional Reset Date"). Not later than
days prior to each Optional Reset Date, the Trustee will mail to the Holder of
this Security a notice (the "Reset Notice") first-class postage prepaid
indicating whether the Company has elected to reset the interest rate, and if so
(a) such new
B-6
interest rate and (b) the provisions, if any, for redemption during the period
from such Optional Reset Date to the Optional Reset Date or if there is no such
Optional Reset Date, to the Stated Maturity Date of this Security (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
provided for in the Reset Notice and establish a higher interest rate for the
Subsequent Interest Period by causing the Trustee to mail notice of such higher
interest rate to the Holder of this Security. Such notice shall be irrevocable.
All registered Securities with respect to which the interest rate is reset on an
Optional Reset Date will bear such higher interest rate.
The Holder of this Security will have the option to elect repayment by
the Company on each Optional Reset Date at a price equal to the principal amount
hereof plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the procedures set
forth below for optional repayment except that the period for delivery or
notification to the Trustee shall be at least but not more than days prior to
such Optional Reset Date and except that, if the Holder has tendered this
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the day before such Optional Reset Date.]
[If applicable, insert--If so specified on the face hereof, the
Maturity of this Security may be extended at the option of the Company for the
period or period of whole years specified on the face hereof (each an "Extension
Period") up to but not beyond the date (the "Final Maturity") set forth on the
face hereof. If the Company exercises such option, the Trustee will mail to the
Holder of this Security not later than days prior to the old Stated Maturity
Date a notice (the "Extension Notice") first-class postage prepaid indicating
(a) the election of the Company to extend the Maturity, (b) the new Stated
Maturity Date, (c) the interest rate applicable to the Extension Period and (d)
the provisions, if any, for redemption during such Extension Period. Upon the
Trustee's mailing of the Extension Notice, the Maturity of this Security shall
be extended automatically and, except as modified by the Extension Notice and as
described in the next paragraph, this Security will have the same terms as prior
to the mailing of such Notice.
Notwithstanding the foregoing, not later than days before the old
Stated Maturity Date of this Security the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to mail notice of
such higher interest rate first-class postage prepaid to the Holder of this
Security. Such notice shall be irrevocable. All Registered Securities with
respect to which the Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of this Security, the Holder will
have the option to elect repayment of this Security by the Company on the old
Stated Maturity Date at a price equal to the principal amount hereof, plus
interest accrued to such date. In order to obtain repayment on the old Stated
Maturity Date once the Company has extended the Maturity hereof, the Holder must
follow the procedures set forth below for optional repayment except that the
period for delivery or notification to the Trustee shall be at least but not
more than days prior to the old
B-7
Stated Maturity Date and except that, if the Holder has tendered this Note for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
day before the old Stated Maturity Date.]
[If applicable, insert--If so specified on the face hereof, this
Security will be repayable prior to Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with accrued interest to the date of
repayment. In order for this Security to be repaid, the Trustee must receive at
least but not more than days prior to an Optional Payment Date (a) this Security
with the form entitled "Option to Elect Repayment" duly completed or (b) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States of America setting forth
the name of the Holder of this Security, the principal amount of the Security to
be repaid, the certificate number or a description of the tenor and terms of
this Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Security with the form entitled "Option to
Elect Repayment" duly completed will be received by the Trustee not later than
Business Days after the date of such telegram, telex, facsimile transmission or
letter. If the procedure described in clause (b) of the preceding sentence is
followed, this Security with such form duly completed must be received by the
Trustee by such Business Day. Any tender of this Security for repayment [(except
pursuant to a Reset Notice or an Extension Notice)] shall be irrevocable. The
repayment option may be exercised by the Holder of this Security for less than
the entire principal amount of the Security provided that the principal amount
of the Security remaining Outstanding after repayment is an authorized
denomination. Upon such partial repayment this Security shall be canceled and a
new Security or Securities for the remaining principal amount hereof shall be
issued in the name of the Holder of this Security.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [ insert formula for determining
the amount.] Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange here for
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
B-8
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless an
Event of Default with respect to this series shall have occurred and be
continuing and such Holder shall have previously given to the Trustee written
notice of such continuing Event of Default with respect to this series, the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days after such notice, request and offer of indemnity; provided, however, that
such limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium, if any)] or [any]
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of [(and premium, if any)]
and [any] interest on this Security at the times, place[s] and rate, and in the
coin or currency, herein described.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in [any place where the principal of [(and
premium, if any)] and [any] interest on this Security are payable][the Borough
of Manhattan, The City of New York, [Cincinnati, Ohio], or subject to any laws
or regulations applicable thereto and to the right of the Company (limited as
provided in the Indenture) to rescind the designation of any such transfer
agent, at the [main] offices of in and in or at such other offices or agencies
as the Company may designate], duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company, the Guarantor and
the Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, with duly executed Guarantees endorsed thereon, will be issued
to the designated transferee or transferees.
The Securities of this series are issuable only in registered form,
without coupons, in denominations of [U.S.$] [payment currency if not U.S.$]and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
[Insert, if applicable--If this Security is a global Security (as
specified on the face hereof), this Security is exchangeable only if (x) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for this global Security or if at any time the Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended or, (y) the Company in its sole discretion determines that this Security
shall be exchangeable for definitive Securities in registered form, provided
that the definitive Securities so issued in exchange for this permanent global
Security shall be in denominations of [U.S.$][payment
B-9
currency if not U.S.$]and any integral multiple of [$1,000] in excess thereof
and be of like aggregate principal amount and tenor as the portion of this
permanent global Security to be exchanged, and provided further that, unless the
Company agrees otherwise, Securities of this series in definitive registered
form will be issued in exchange for this permanent global Security, or any
portion hereof, only if such Securities in definitive registered form were
requested by written notice to the Trustee or the Security Registrar by or on
behalf of a Person who is beneficial owner of an interest hereof given through
the Holder hereof. Except as provided above, owners of beneficial interests in
this permanent global Security will not be entitled to receive physical delivery
of Securities in definitive registered form and will not be considered the
Holders thereof for any purpose under the Indenture.]
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Security shall be governed by the internal laws (as opposed to
conflicts of laws provisions) of the State of Ohio.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT--Custodian (Cust)(Minor) Under Uniform Gifts to
Minors Act (State) Additional abbreviations may also be used though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE the within Security and all rights thereunder, hereby irrevocably
constituting and appointing ________________________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
----------------------------------
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
B-11
EXHIBIT C
[FORMS OF CERTIFICATION]
EXHIBIT C1
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNER OF BEARER
SECURITY] CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below [U.S.$] [payment currency if not U.S.$] principal amount of the
above-captioned Securities held by you for our account (i) is owned by person(s)
that are not United States person(s) (as defined below), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in Section 1.165-12(c)(1)(v) of the United States
Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the Treasury regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for the
purpose of resale during the restricted period (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations), and in
addition if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that such financial institution
has not acquired the Securities for the purpose of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the beneficial
interest in the temporary global Security held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$][payment
currency if not U.S.$] principal amount of Securities held by you for our
account as to which we are not able to provide a certificate in this form. We
understand that exchange of such portion of the temporary global Security for
definitive Bearer Securities or interests in a permanent global Security and
that payments, if any, due prior to the Exchange Date with respect to such
portion of the temporary global Security cannot be made until we are able to
provide a certificate in this form.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means (i) a citizen or resident of the United
States, (ii) a corporation or partnership created or organized in or under the
laws of the United States or any political subdivision thereof, (iii) an estate
the income of which is subject to United States federal income taxation
regardless of its source or (iv) a trust which is subject to the supervision of
a court within the United States and the control of a United States fiduciary as
described in section 7701(a)(30) of the Code. "United States" means the United
States of America (including the states and the District of Columbia) and its
"possessions" which include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
Dated: __________________________ ,[20___ ] [To be dated no earlier
than the 15th day before the Exchange Date or Interest Payment Date, as the case
may be]
By:
-----------------------------------------
Authorized Officer
By:
-------------------------------------------
As, or as agent for, the beneficial owner(s)
of the portion of the temporary global
Securities to which the certificate relates
C1-2
EXHIBIT C2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND CLEARSTREAM] CERTIFICATE -
-----------------------------------------------------------------------------
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, [U.S.$][payment
currency if not U.S.$] principal amount of the above-captioned Securities (i) is
owned by persons(s) that are not United States person(s) (as defined below),
(ii) is owned by United States person(s) that are (a) foreign branches of United
States financial institutions (as defined in Section 1.165-12(c)(1)(v) of the
United States Treasury regulations) ("financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution has agreed, on its own behalf or through its agent, that we may
advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the Treasury regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for the
purpose of resale during the restricted period (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations), and in
addition United States or foreign financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for the purpose of resale directly or
indirectly to a United States person or to a person within the United States or
it possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Security excepted
in such certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means (i) a citizen or resident of the United States,
(ii) a corporation or partnership created or organized in or under the laws of
the United States or any political subdivision thereof, (iii) an estate the
income of which is subject to United States federal income taxation regardless
of its source or (iv) a trust which is subject to the supervision of a court
within the United States and the control of a United States fiduciary as
described in section 7701(a)(30) of the Code. "United States" means the United
States of America (including
the states and the District of Columbia) and its "possessions" which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated: ___________, [20__]
[To be dated no earlier than the Exchange Date in the case of exchanges
or on or after the relevant Interest Payment Date in the case of interest
payments]
EURO-CLEAR SYSTEM
By: EUROCLEAR BANK, S.A./N.V.
By:
----------------------------------------
Authorized Officer
CLEARSTREAM BANKING SOCIETE ANONYME
By:
-------------------------------------------------
Authorized Officer
C2-2
EXHIBIT D
[FORM OF COUPON]
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
No._________
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
THE X.X. XXXXXXX COMPANY
[If the Security to which this coupon relates is a fixed rate Security,
insert the following:
This is a coupon for [ ] due on [ ].]
[If the Security to which this coupon relates is a floating rate
Security, insert the following: This is a coupon for the amount due on the
Interest Payment Date falling on [ ].]
This coupon is payable to bearer (subject to the terms and conditions
of the Security to which this coupon appertains, which shall be binding upon the
bearer of this coupon whether or not it is for the time being attached to such
Security) at the specified offices outside the United States of the Trustee and
each Paying Agent set out on the reverse hereof (or any other Trustee or Paying
Agent or specified office outside the United States duly appointed or nominated
and notified to the Holders of Securities of the Series of which the Security to
which this coupon appertains is a part).
[If the Security to which this coupon relates may, by its terms, be
repaid prior to maturity, insert the following: If the Security to which this
coupon appertains shall have become due and payable before the maturity date of
this coupon, this coupon shall become void and no payment shall be made in
respect thereof.]
THE X.X. XXXXXXX COMPANY
By:
------------------------------------
Authorized Officer
[Reverse of Coupon]
[Insert names and addresses of Paying Agents]
and/or such other or further agents and/or specified offices outside of
the United States as may from time to time be duly appointed or nominated and
notified to Holders of Securities of the Series of which the Security to which
this coupon appertains is a part.
