Exhibit 4.3
__________________________________________________________________
APEX SILVER MINES LIMITED
and
__________________
as Trustee
_____________________
INDENTURE
Dated as of _________
_____________________
Providing for the Issuance of
Subordinated Debt Securities in Series
__________________________________________________________________
APEX SILVER MINES LIMITED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE PROVISIONS*
TRUST INDENTURE ACT SECTION INDENTURE SECTION
---------------------------- -----------------------------
Section 310 (a)(1)..................... 7.9
(a)(2)..................... 7.9
(a)(3) Not Applicable
(a)(4)..................... Not Applicable
(b)........................ 7.8
7.10
Section 311
(a)........................ 7.13(a)
7.13(c)
(b)........................ 7.13(b)
(b)(2)..................... 8.3(a)(2)
8.3(b)
Section 312
(a)........................ 8.1
8.2(a)
(b)........................ 8.2(b)
(c)........................ 8.2(c)
Section 313
(a)........................ 8.3(a)
(b)........................ 8.3(b)
(c)........................ 8.3(d)
(d)........................ 8.3(c)
Section 314
(a)........................ 8.4
(b)........................ Not Applicable
(c)(1)..................... 1.2
(c)(2)..................... 1.2
(c)(3)..................... Not Applicable
(d)........................ Not Applicable
(e)........................ 1.2
------------------------------
* This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
TRUST INDENTURE ACT
SECTION INDENTURE SECTION
---------------------------- -----------------------------
Section 315
(a)........................ 7.1(a)
(b)........................ 7.2
8.3(a)(6)
(c)........................ 7.1(b)
(d)........................ 7.1(c)
(d)(1)..................... 7.1(a)
(d)(2)..................... 7.1(c)(2)
(d)(3)..................... 7.1(c)(3)
(e)........................ 6.14
Section 316
(a)........................ 1.1
(a)(1)(A).................. 6.2
6.12
(a)(1)(B).................. 6.13
(a)(2)..................... Not Applicable
(b)........................ 6.8
Section 317
(a)(1)..................... 6.3
(a)(2)..................... 6.4
(b)........................ 11.3
Section 318
(a)........................ 1.7
iii
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................... 1
SECTION 1.1 DEFINITIONS.......................................................................................... 1
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS................................................................. 11
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE............................................................... 12
SECTION 1.4 ACTS OF HOLDERS...................................................................................... 12
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY................................................................ 14
SECTION 1.6 NOTICE TO HOLDERS; WAIVER............................................................................ 15
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.................................................................... 16
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS............................................................. 16
SECTION 1.9 SUCCESSORS AND ASSIGNS............................................................................... 16
SECTION 1.10 SEPARABILITY CLAUSE.................................................................................. 16
SECTION 1.11 BENEFITS OF INDENTURE................................................................................ 16
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS............................. 16
SECTION 1.13 GOVERNING LAW........................................................................................ 16
SECTION 1.14 LEGAL HOLIDAYS....................................................................................... 17
SECTION 1.15 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED...................................................... 17
SECTION 1.16 PAYMENT TO BE IN PROPER CURRENCY..................................................................... 17
SECTION 1.17 LANGUAGE OF NOTICES, ETC............................................................................. 18
SECTION 1.18 CHANGES IN EXHIBITS.................................................................................. 18
SECTION 1.19 COUNTERPART ORIGINALS................................................................................ 18
ARTICLE TWO ISSUANCE OF SECURITIES..................................................................................... 18
SECTION 2.1 CREATION OF SECURITIES IN AMOUNT UNLIMITED........................................................... 18
SECTION 2.2 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF SECURITIES OTHER THAN
MEDIUM-TERM DEBT SECURITIES.......................................................................... 18
ARTICLE THREE ISSUANCE OF MEDIUM-TERM DEBT SECURITIES.................................................................. 22
SECTION 3.1 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF MEDIUM-TERM DEBT
SECURITIES........................................................................................... 22
SECTION 3.2 FORM OF MEDIUM-TERM DEBT SECURITIES.................................................................. 27
ARTICLE FOUR THE SECURITIES............................................................................................ 27
SECTION 4.1 FORM AND DENOMINATION................................................................................ 27
SECTION 4.2 EXECUTION, DELIVERY, DATING AND AUTHENTICATION....................................................... 28
SECTION 4.3 TEMPORARY SECURITIES................................................................................. 31
SECTION 4.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.................................................. 33
SECTION 4.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..................................................... 36
iv
SECTION 4.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED....................................................... 37
SECTION 4.7 PERSONS DEEMED OWNERS................................................................................ 38
SECTION 4.8 CANCELLATION......................................................................................... 38
SECTION 4.9 COMPUTATION OF INTEREST.............................................................................. 39
SECTION 4.10 CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES.............................................. 39
SECTION 4.11 SECURITIES IN GLOBAL FORM............................................................................ 44
SECTION 4.12 CUSIP, ISIN AND COMMON CODE NUMBERS.................................................................. 46
ARTICLE FIVE SATISFACTION AND DISCHARGE................................................................................ 47
SECTION 5.1 SATISFACTION AND DISCHARGE OF INDENTURE IN RESPECT OF ANY SERIES OF SECURITIES....................... 47
SECTION 5.2 APPLICATION OF TRUST MONEY........................................................................... 48
SECTION 5.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES................................... 48
SECTION 5.4 REINSTATEMENT........................................................................................ 51
SECTION 5.5 DEFINITIONS.......................................................................................... 51
ARTICLE SIX REMEDIES................................................................................................... 52
SECTION 6.1 EVENTS OF DEFAULT.................................................................................... 52
SECTION 6.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT................................................... 53
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE...................................... 54
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM..................................................................... 55
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.......................................... 56
SECTION 6.6 APPLICATION OF MONEY COLLECTED....................................................................... 56
SECTION 6.7 LIMITATION ON SUITS.................................................................................. 57
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST............................ 58
SECTION 6.9 RESTORATION OF RIGHTS AND REMEDIES................................................................... 58
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE....................................................................... 58
SECTION 6.11 DELAY OR OMISSION NOT WAIVER......................................................................... 58
SECTION 6.12 CONTROL BY HOLDERS................................................................................... 58
SECTION 6.13 WAIVER OF PAST DEFAULTS.............................................................................. 59
SECTION 6.14 UNDERTAKING FOR COSTS................................................................................ 59
SECTION 6.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.............................................................. 60
ARTICLE SEVEN THE TRUSTEE.............................................................................................. 60
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.................................................................. 60
SECTION 7.2 NOTICE OF DEFAULTS................................................................................... 61
SECTION 7.3 CERTAIN RIGHTS OF TRUSTEE............................................................................ 61
SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES............................................... 62
SECTION 7.5 MAY HOLD SECURITIES.................................................................................. 63
v
SECTION 7.6 MONEY HELD IN TRUST.................................................................................. 63
SECTION 7.7 COMPENSATION AND REIMBURSEMENT....................................................................... 63
SECTION 7.8 DISQUALIFICATION; CONFLICTING INTERESTS.............................................................. 64
SECTION 7.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.............................................................. 64
SECTION 7.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.................................................... 65
SECTION 7.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR............................................................... 66
SECTION 7.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.......................................... 67
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.................................................... 68
SECTION 7.14 JUDGMENT CURRENCY.................................................................................... 68
SECTION 7.15 APPOINTMENT OF AUTHENTICATING AGENT.................................................................. 69
ARTICLE EIGHT HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................................................ 71
SECTION 8.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS............................................ 71
SECTION 8.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS............................................... 71
SECTION 8.3 REPORTS BY TRUSTEE................................................................................... 72
SECTION 8.4 REPORTS BY COMPANY................................................................................... 72
ARTICLE NINE CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER............................................................. 73
SECTION 9.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS................................................. 73
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED......................................................................... 73
ARTICLE TEN SUPPLEMENTAL INDENTURES.................................................................................... 74
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS................................................... 74
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...................................................... 75
SECTION 10.3 EXECUTION OF SUPPLEMENTAL INDENTURES................................................................. 77
SECTION 10.4 EFFECT OF SUPPLEMENTAL INDENTURES.................................................................... 77
SECTION 10.5 CONFORMITY WITH TRUST INDENTURE ACT.................................................................. 77
SECTION 10.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES................................................... 77
ARTICLE ELEVEN COVENANTS............................................................................................... 78
SECTION 11.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST........................................................... 78
SECTION 11.2 MAINTENANCE OF OFFICE OR AGENCY...................................................................... 78
SECTION 11.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.................................................... 79
SECTION 11.4 STATEMENT BY OFFICERS AS TO DEFAULT.................................................................. 81
SECTION 11.5 ADDITIONAL AMOUNTS................................................................................... 81
vi
ARTICLE TWELVE REDEMPTION OF SECURITIES................................................................................ 82
SECTION 12.1 APPLICABILITY OF ARTICLE............................................................................. 82
SECTION 12.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE................................................................ 82
SECTION 12.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.................................................... 82
SECTION 12.4 NOTICE OF REDEMPTION................................................................................. 83
SECTION 12.5 DEPOSIT OF REDEMPTION PRICE.......................................................................... 84
SECTION 12.6 SECURITIES PAYABLE ON REDEMPTION DATE................................................................ 84
SECTION 12.7 SECURITIES REDEEMED IN PART.......................................................................... 85
ARTICLE THIRTEEN SINKING FUNDS......................................................................................... 85
SECTION 13.1 APPLICABILITY OF ARTICLE............................................................................. 85
SECTION 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES................................................ 85
SECTION 13.3 REDEMPTION OF SECURITIES FOR SINKING FUND............................................................ 86
ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES..................................................................... 86
SECTION 14.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED............................................................ 86
SECTION 14.2 CALL, NOTICE AND PLACE OF MEETINGS................................................................... 86
SECTION 14.3 PERSONS ENTITLED TO VOTE AT MEETINGS................................................................. 87
SECTION 14.4 QUORUM; ACTION....................................................................................... 87
SECTION 14.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.................................. 88
SECTION 14.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS...................................................... 89
ARTICLE FIFTEEN SUBORDINATION.......................................................................................... 89
SECTION 15.1 AGREEMENT TO SUBORDINATE............................................................................. 89
SECTION 15.2 LIQUIDATION, DISSOLUTION, BANKRUPTCY................................................................. 89
SECTION 15.3 DEFAULT ON SENIOR INDEBTEDNESS....................................................................... 90
SECTION 15.4 ACCELERATION OF PAYMENT OF SECURITIES................................................................ 91
SECTION 15.5 WHEN DISTRIBUTIONS MUST BE PAID OVER................................................................. 91
SECTION 15.6 SUBROGATION.......................................................................................... 91
SECTION 15.7 RELATIVE RIGHTS...................................................................................... 91
SECTION 15.8 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY......................................................... 92
SECTION 15.9 RIGHTS OF TRUSTEE AND PAYING AGENT................................................................... 92
SECTION 15.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE............................................................. 92
SECTION 15.11 ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT TO ACCELERATE........................ 93
SECTION 15.12 TRUST MONEYS NOT SUBORDINATED........................................................................ 93
SECTION 15.13 TRUSTEE ENTITLED TO RELY UPON ANY PAYMENT OR DISTRIBUTION............................................ 93
SECTION 15.14 TRUSTEE TO EFFECTUATE SUBORDINATION.................................................................. 93
SECTION 15.15 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS............................................. 94
SECTION 15.16 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
vii
SUBORDINATION PROVISIONS............................................................................. 94
EXHIBIT A [Reserved]
EXHIBIT B.1 Form of Certificate to be given by Person entitled to receive Bearer Security
EXHIBIT B.2 Form of Certificate to be given by Euroclear and CEDEL in connection with the
Exchange of a portion of Temporary Global Security.
EXHIBIT B.3 Form of Certificate to be given by Euroclear and CEDEL to obtain Interest
prior to an Exchange Date
EXHIBIT B.4 Form of Certificate to be given by Beneficial Owners to obtain Interest prior
to an Exchange Date
EXHIBIT B.5 Form of Confirmation to be Sent to Purchasers of Bearer Securities
viii
INDENTURE dated as of ______________, ____, between APEX
SILVER MINES LIMITED, a corporation duly organized and existing under
the laws of the Cayman Islands (herein called the "Company"), having
its registered office at Caledonian House, Xxxxxxx Street, Georgetown,
Grand Cayman, Cayman Islands, British West Indies, and
___________________, as Trustee (herein called the "Trustee"), the
office of the Trustee at which at the date hereof its corporate trust
business is principally administered being __________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS
For all purposes of this Indenture, 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, and, except as otherwise herein expressly provided, 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 of America at the date of such
computation;
(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; and
(e) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance
with generally accepted accounting principles.
Certain terms, used principally within an Article of this Indenture, may be
defined in that Article.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.4.
"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 7.15 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Blockage Notice" has the meaning specified in Section 15.3.
"Board of Directors" means either the board of directors of the Company,
any executive officer of the Company duly authorized to act in the name of or on
behalf of such board of directors or any committee consisting of two or more
persons, who need not be directors, duly authorized to act in the name of or on
behalf of such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification.
"Business Day," when used with respect to any Place of Payment or place of
publication, means each day on which commercial banks and foreign exchange
markets settle payments in
2
the Place of Payment or place of publication, or as specified for a series of
Securities pursuant to Section 2.2 or Section 3.1, as the case may be. Unless
otherwise specified pursuant to Section 2.2 or Section 3.1, as the case may be,
when used with respect to Securities bearing interest at a rate or rates
determined by reference to London interbank offered rates for deposits in U.S.
Dollars, "Business Day" shall exclude any day on which commercial banks and
foreign exchange markets do not settle payments in London.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
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.
"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," "Request of the Company," "Company Order" or "Order of
the Company" means a written request or order signed in the name of the Company
by its Chairman of the Board, its Chief Executive Officer, its Chief Operating
Officer, President, a Vice President or any person acting in a similar capacity,
and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Chief Financial Officer, its Chief Accounting Officer,
Secretary, an Assistant Secretary or any person acting in a similar capacity,
and delivered to the Trustee.
"Component Currency" has the meaning specified in Section 4.10(i).
"Conversion Date" has the meaning specified in Section 4.10(e).
"Conversion Rate" has the meaning specified in Section 7.14.
"Corporate Trust Office" means the principal office of the Trustee in
_______________, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is
________________, except that with respect to the presentation of Securities (or
Coupons, if any, representing an installment of interest) for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted.
"Corporation" includes corporations, associations, companies, limited
liability companies, partnerships and business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 4.6.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 2.2 or 3.1, with respect to Securities of any series issuable or
issued as a Global Security,
3
_________________ or any successor thereto registered as a clearing agency under
the Exchange Act or other applicable statute or regulation.
"Designated Senior Indebtedness" means any Senior Indebtedness the
principal amount of which is $25 million or more that has been designated by the
Company as Designated Senior Indebtedness.
"Discharged" has the meaning specified in Section 5.5.
"Dollar," "U.S. Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 4.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 4.10(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means the operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate Agent" means the entity appointed by the Company pursuant to
Section 1.4(g). Unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, the Luxembourg Stock Exchange shall act as
Exchange Rate Agent for purposes of Section 4.10 in the case of each series of
Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex or a
certificate setting forth (1) the applicable Official Currency Unit Exchange
Rate and (2) the Dollar or Foreign Currency or currency unit amounts of
principal, premium, if any, and interest, if any, respectively (on an aggregate
basis and on the basis of a Security having a principal amount of 1,000 units in
the relevant currency or currency unit), payable on the basis of such Official
Currency Unit Exchange Rate, sent (in the case of a telecopy or telex) or
executed (in the case of a certificate) by the Chairman, Controller or any
Assistant Controller or by the Treasurer or any Assistant Treasurer of the
Company or any person acting in a similar capacity and delivered to the Trustee;
such telecopy, tested telex or certificate need not comply with Section 1.2.
"Foreign Currency" means any currency, including, without limitation, the
ECU, issued by the government of one or more countries other than the United
States of America or by a recognized confederation or association of such
governments.
4
"Foreign Government Securities" has the meaning specified in Section 5.5.
"Funded Debt" means any Indebtedness maturing by its terms more than one
year from the date of the issuance thereof, including any Indebtedness renewable
or extendible at the option of the obligor to a date later than one year from
the date of the original issuance thereof.
"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is registered
in the Security Register and, with respect to a Bearer Security and/or a Coupon,
the bearer thereof.
"Indebtedness" of any Person means all indebtedness representing money
borrowed which is created, assumed, incurred or guaranteed in any manner by such
Person or for which such Person is otherwise responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds to or invest in,
others).
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 2.2 and Section 3.1, as the case may be.
"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 of an installment of interest on such Security.
"Issue Date" means, with respect to any Securities of a series, the date on
which such Securities are authenticated and delivered pursuant to this
Indenture.
"Market Exchange Rate" has the meaning specified in Section 4.10(i).
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Medium-Term Debt Securities" has the meaning specified in Section 3.1.
5
"Medium-Term Debt Securities Certificate" shall mean a certificate signed
by the Chairman of the Board, the Chief Executive Officer, the Chief Operating
Officer, the President, any Vice President or any person acting in a similar
capacity, the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, the Controller, any Secretary or Assistant Treasurer, Assistant
Controller or Assistant Secretary of the Company, or any person acting in a
similar capacity or any other employee of the Company designated by a Board
Resolution as having the authority to deliver a Medium-Term Debt Securities
Certificate hereunder.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the Chief Operating Officer, the President,
any Vice President or any person acting in a similar capacity, and by the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, the Controller,
the Secretary or any Assistant Treasurer, Assistant Controller, Assistant
Secretary or any person acting in a similar capacity, of the Company, and
delivered to the Trustee. Each such Officers' Certificate shall contain the
statements provided in Section 1.2 if and to the extent required by the
provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any payment
to be made hereunder, the exchange rate between the relevant currency unit and
the currency or currency unit of payment calculated by the Exchange Rate Agent
for the Securities of the relevant series (in the case of ECU, reported by the
Commission of the European Communities and on the date hereof based on the rates
in effect at 2:30 p.m., Brussels time, on the exchange markets of the Component
Currencies of ECU), on the Business Day (in the city in which such Exchange Rate
Agent has its principal office) immediately preceding delivery of any Exchange
Rate Officers' Certificate.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Company. Each Opinion of Counsel shall contain the
statements provided in Section 1.2 if and to the extent required by the
provisions of such Section.
"Original Issue Discount Security" means (1) 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 6.2,
and (2) any other security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding" or "outstanding," when used with respect to Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered
or deemed delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount and in the required currency or currency unit has
been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; PROVIDED that, if such Securities are to
be redeemed, notice of such redemption has been duly given
6
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(3) Securities which have been paid pursuant to Section 4.5 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 Outstanding Securities or the
number of votes entitled to be cast by each Holder of a Security in respect of
such Security at any such meeting, (1) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.2, (2) the principal amount of a Security
denominated in a Foreign Currency or currency unit shall be the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on the date of such determination
(or, in the case of a Security denominated in a currency unit for which there is
no Market Exchange Rate, the Dollar equivalent obtained by adding together the
results obtained by converting the Specified Amount of each Component Currency
into Dollars at the Market Exchange Rate for each such Component Currency on the
date of such determination) of the principal amount (or, in the case of an
Original Issue Discount Security, of the amount determined as provided in (1)
above) of such Security, and (3) 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, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Payment Blockage Period" has the meaning specified in Section 15.3
"Person" or "person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or other similar
entity.
7
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on the Securities of that series are payable as specified in
accordance with Section 2.2 or Section 3.1, as the case may be.
"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 4.5 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"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, in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or definitive
global registered form).
"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 2.2 or Section 3.1, as the case may be, which
date shall be, unless otherwise specified pursuant to Section 2.2 or Section
3.1, as the case may be, the fifteenth day preceding such Interest Payment Date,
whether or not such day shall be a Business Day.
"Representative" means any trustee, agent or representative (if any) for
any issue of Senior Indebtedness.
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Trust Officer," when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case of
any Bearer Security, shall include where appropriate any Coupons appertaining
thereto.
8
"Security Register" has the meaning specified in Section 4.4.
"Security Registrar" means the Person appointed as the initial Security
Registrar in Section 4.4 or any Person appointed by the Company as a successor
or replacement Security Registrar.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on, (1) all the Company's other indebtedness for money borrowed, other than the
Securities, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, except such indebtedness as is by its
terms expressly stated to be not superior in right of payment to the Securities
or to rank pari passu with the Securities and (2) any deferrals, renewals or
extensions of any such Senior Indebtedness; provided, however, that Senior
Indebtedness shall not include (i) any obligation of the Company to any
Subsidiary and (ii) any liability for Federal, state, local or other taxes owed
or owing by the Company. The term "indebtedness for money borrowed" as used
herein shall include, without limitation, any obligation of, or any obligation
guaranteed by, the Company for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, notes or other written instruments, and any
deferred obligation for the payment of the purchase price of property or assets.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 4.6.
"Specified Amount" has the meaning specified in Section 4.10(i).
"Stated Maturity," when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any Corporation a majority of the Voting Shares of which
are at the time owned or controlled, directly or indirectly, by the Company or
by one or more Subsidiaries, or by the Company and one or more 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 by
the Trust Indenture Reform Act of 1990, and as in force on the date as of which
this instrument is executed, except as provided in Section 10.5.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
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"U.S. Government Obligations" has the meaning specified in Section 5.5.
"Valuation Date" has the meaning specified in Section 4.10(e).
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president," including, without
limitation, any assistant vice president.
"Voting Shares" means, with respect to any Corporation, securities of any
class or classes of capital stock in such Corporation entitling the holders
thereof (whether at all times or at the times that such class of capital stock
has voting power by reason of the happening of any contingency) to vote in the
election of members or the board of directors of comparable body of such
Corporation.
"Yield to Maturity" means the yield to maturity, calculated at the time of
issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Unless expressly otherwise specified with respect to any certificate
or opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 11.4)
shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3 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 or opinion or representations with respect to
the matters upon which such certificate or opinion is based 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
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 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 Securities of any series may be embodied in and evidenced by (1) one
or more instruments of substantially similar tenor signed by such Holders in
person or by proxies or agents duly appointed in writing, (2) the record of such
Holders voting in favor thereof, either in person or by proxies or agents 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 Fourteen, or
(3) a combination of any such record and one or more instruments of
substantially similar tenor signed by such Holders in person or by proxies or
agents duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such record and/or instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such record or instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such proxy or agents shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and
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 14.6.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) 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 by any trust company,
bank, banker or other depository, wherever situated, showing that at the date
therein mentioned such Person had on deposit with such depository, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, (2) such Bearer Security is
produced to the Trustee by some other Person, (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(d) The fact and date of execution of any such instrument or writing
pursuant to Subsection (c) above, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding the same
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Clause.
(e) 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.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of a Holder shall bind every future Holder of the same
Security and/or Coupon and the Holder of every Security and/or Coupon 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 and/or Coupon.
(g) Whenever any Act is to be taken hereunder by the Holders of two
or more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of Securities
held by such Holders, the aggregate principal amount of the Securities
denominated in a Foreign Currency (or any currency unit) shall be deemed to be
that amount determined by the Company or by an authorized Exchange Rate Agent
and evidenced to the Trustee by an Officers' Certificate as of the date of the
taking of such Act by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee to be equal to the Dollar
equivalent obtained by converting the specified Foreign Currency or currency
unit into Dollars at the Market Exchange Rate on such date (or, in the case
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of a Security denominated in a currency unit for which there is no Market
Exchange Rate, the Dollar equivalent obtained by adding together the results
obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for each such Component Currency on such
date) of the principal amount (or, in the case of an Original Issue Discount
Security, the principal amount thereof that would be due and payable as of the
declaration of acceleration of the Maturity thereof pursuant to Section 6.2) of
such Security. An Exchange Rate Agent may be authorized in advance or from time
to time by the Company. Any such determination by the Company or by any such
Exchange Rate Agent shall be conclusive and binding on all Holders, the Company
and the Trustee, and neither the Company nor any such Exchange Rate Agent shall
be liable therefor in the absence of bad faith.
(h) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; PROVIDED that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office and unless otherwise herein expressly provided,
any such document shall be deemed to be sufficiently made, given,
furnished or filed upon its receipt by a Responsible Trust Officer of
the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and delivered in person, mailed,
first-class postage prepaid, or sent by overnight courier or, until
such time as the Company shall have notified the Trustee in writing
that it shall no longer accept delivery of notice by telecopy or given
by telecopy to the Company addressed to it at the address of its
registered office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company, or at its telecopy
13
number from time to time furnished in writing to the Trustee expressly
for purposes of this Indenture, Attention: Secretary.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER
(a) Where this Indenture provides for notice to Holders of any event:
(1) if any of the Securities affected by such event are
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided or unless otherwise specified in
such Securities) if in writing and mailed, first-class postage
prepaid, delivered in person, or sent by overnight courier, to each
Holder affected by such event, at such Holder's address as it appears
in the Security Register, within the time prescribed for the giving of
such notice, and
(2) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (i) published once in an Authorized Newspaper in New
York City and London and, if applicable, in Luxembourg or such other
place of publication as may be required pursuant to the rules and
regulations of any securities exchange on which such Securities are
listed, and (ii) mailed, first-class postage prepaid, delivered in
person or sent by overnight courier to such Persons whose names were
previously filed with the Trustee, within the time prescribed for the
giving of such notice.
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 in the manner specified above, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder. 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.
(b) In any case where notice to a Holder of Registered Securities is
given in any manner specified in Subsection (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in Subsection (a) above, neither the
failure to deliver, mail or send such notice, nor any defect in any notice so
mailed or sent, 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. Neither the failure to give notice by publication to
Holders of Bearer Securities as provided in Subsection (a) 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.
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(c) 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 1.7 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or excluded, as the
case may be.
SECTION 1.8 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 1.9 SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE
In case any provision in this Indenture or in the Securities 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 1.11 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Securities or Coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS
No director, officer, employee, incorporator or shareholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, this Indenture, or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting
Securities waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities.
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SECTION 1.13 GOVERNING LAW
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPALS THEREOF.
SECTION 1.14 LEGAL HOLIDAYS
Except as otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security or Coupon shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of such Security or Coupon) payment of 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, as the case may be, PROVIDED that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to the next
succeeding Business Day at such Place of Payment.
SECTION 1.15 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED
The Trustee shall segregate moneys, funds and accounts held by the
Trustee hereunder in one currency (or currency unit) from any moneys, funds or
accounts in any other currencies (or currency units), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 1.16 PAYMENT TO BE IN PROPER CURRENCY
In the case of any Security denominated in any particular currency or
currency unit (the "Required Currency"), subject to applicable law and except as
otherwise provided herein, therein or in or pursuant to the related Board
Resolution, Medium-Term Debt Securities Certificate or supplemental indenture,
the obligation of the Company to make any payment of principal, premium or
interest thereon shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency or currency unit other than
the Required Currency, except to the extent that such tender or recovery shall
result in the Trustee's timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is made in other than the
Required Currency, the Trustee may take such actions as it considers appropriate
to exchange such other currency or currency unit for the Required Currency. The
costs and risks of any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company, the Company
shall be liable for any shortfall or delinquency in the full amount of the
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of payment
based upon any such tender or recovery which is not in the Required Currency, or
which, when exchanged for the Required Currency by the Trustee, is less than the
full amount of the Required Currency then due and payable.
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SECTION 1.17 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 1.18 CHANGES IN EXHIBITS
At any time and from time to time, the Company may substitute a new
form, or add new forms, of the Exhibits hereto. Such substitution shall be
effective upon receipt by the Trustee of such new form of Exhibit and a Board
Resolution or Officers' Certificate adopting such new form of Exhibit, and
thereafter all references in this Indenture to such Exhibit shall be deemed to
refer to such new form of Exhibit.
SECTION 1.19 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture by the
parties thereto in separate counterparts, each of which when signed shall be
deemed to be an original, but all of them together represent the same agreement.
ARTICLE TWO
ISSUANCE OF SECURITIES
SECTION 2.1 CREATION OF SECURITIES IN AMOUNT UNLIMITED
An unlimited aggregate principal amount of Securities may be issued
pursuant to this Article Two and, in the case of Medium-Term Debt Securities,
pursuant to Article Three. The Securities (including Medium-Term Debt
Securities) may be authenticated and delivered, as authorized by the Board of
Directors, in an unlimited number of series up to an aggregate principal amount
of Securities for such series as from time to time may be authorized by the
Board of Directors. All Securities of each series of this Indenture shall be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time of the
authentication and delivery or Stated Maturity of the Securities of such series.
SECTION 2.2 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF
SECURITIES OTHER THAN MEDIUM-TERM DEBT SECURITIES
At any time and from time to time, Securities of each series created
pursuant to the provisions of this Article Two may be executed by the Company
and delivered to the Trustee and shall be authenticated by the Trustee and
delivered to, or upon the order of, the Company upon receipt by the Trustee of
the following:
(a) A Board Resolution or Board Resolutions authorizing the
execution, authentication and delivery of the Securities of the series, and
specifying:
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(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Article Two (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 4.3, 4.4,
4.5, 10.6 or 12.7 and except for any Securities which, pursuant to
Section 4.2, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal (and premium, if
any) of any of the Securities of the series are payable or the method
of determination thereof;
(4) the rate or rates, or the method of determination thereof,
at which any of the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Registered
Securities on any Interest Payment Date;
(5) if an Original Issue Discount Security, the Yield to
Maturity;
(6) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if
any, of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to Section
11.2;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the terms of any sinking fund and 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 and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part;
(9) the terms of the obligation of the Company, if any, to
permit the conversion of the Securities of the series into stock or
other securities of the Company or of any other corporation;
(10) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell stock
or other securities of the Company;
(11) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities
18
denominated in Dollars, the denominations in which the Securities of
the series shall be issuable;
(12) if other than the principal amount thereof, the portion of
the principal amount of any of the Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 6.2;
(13) the application, if any, of Section 5.3, or such other
means of satisfaction and discharge as may be specified for the
Securities and Coupons, if any, for a series;
(14) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.1 or covenants of the Company
set forth in Section 8.4, Article Nine or Article Eleven pertaining to
the Securities of the series;
(15) the forms of the Securities and Coupons, if any, of the
series;
(16) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Securities of such series will be
denominated and/or in which payment of the principal of (and premium,
if any) and interest, if any, on any of the Securities of the series
shall be payable and the Exchange Rate Agent, if any, for such series;
(17) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or a Holder thereof, or under some or all
other circumstances, in a currency or currencies, or currency unit or
units, other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon
which, such election may be made, or the other circumstances under
which any of the Securities are to be so payable, including without
limitation the application of Section 4.10(b) and any deletions to,
modifications of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(18) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series may
be determined with reference to an index based on (i) a currency or
currencies or currency unit or units other than that in which such
Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(19) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons),
or any combination thereof, whether Bearer Securities may be exchanged
for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the
19
circumstances under which and the place or places where any such
exchanges, if permitted, may be made; and 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 definitive
global form with or without Coupons and, if so, whether beneficial
owners of interests in any such definitive Global Security may
exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which and the place or places where any such exchanges may
occur, if other than in the manner provided in Section 4.4;
(20) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts
on any of the Securities and Coupons, if any, of the series to any
Holder who is not a U.S. Person (including definition of such term),
in respect of any tax assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay additional amounts (and the
terms of any such option);
(21) 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 4.3;
(22) the subordination of the Securities of such series to any
other Indebtedness of the Company, including without limitation, the
Securities of any other series; and
(23) any other terms of any of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers' Certificate
certifying as to such action also shall be delivered to the Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental indentures,
such supplemental indenture or indentures, accompanied by a Board Resolution or
Board Resolutions authorizing such supplemental indenture or indentures and
designating the new series to be created and prescribing pursuant to Subsection
(a) above, consistent with the applicable provisions of this Indenture, the
terms and provisions relating to the Securities of the series.
(c) [Reserved.]
20
(d) An Opinion of Counsel that all instruments furnished to the Trustee
pursuant to this Article 2 conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to authenticate and
deliver the Securities and to deliver the Coupons, if any, of the series; that
all conditions precedent provided for in this Indenture relating to the
authentication and delivery of the Securities and delivery of the Coupons, if
any, of the series have been complied with; that the Company has corporate power
to execute and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all necessary
corporate action for those purposes; and that the supplemental indenture, if
any, as executed and delivered and the Securities and Coupons, if any, of the
series, when issued, will be the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms (subject
to applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect, the enforceability of the Company's obligations
also being subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and to such
other exceptions that are customary in the circumstances); that the Securities
and Coupons, if any, of the series, when issued, will be entitled to the
benefits of this Indenture, equally and ratably with all other Securities and
Coupons, if any, of such series theretofore issued and then outstanding
hereunder; and that the amount of Securities then outstanding under this
Indenture, including the Securities of the series, will not exceed the amount at
the time permitted by law or this Indenture.
(e) An Officers' Certificate stating that the Company is not in default
under this Indenture and that the issuance of the Securities and Coupons, if
any, of the series will not result in any breach of any of the terms, conditions
or provisions of, or constitute a default under, the Company's Memorandum of
Association and Articles of Association, or other comparable organizational
documents, as applicable, or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it is bound,
or any order of any court or administrative agency entered in any proceeding to
which the Company is a party or by which it may be bound or to which it may be
subject; and that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Securities and Coupons, if any, of the
series have been complied with.
(f) Such other documents as the Trustee may reasonably require.
ARTICLE THREE
ISSUANCE OF MEDIUM-TERM DEBT SECURITIES
SECTION 3.1 DOCUMENTS REQUIRED FOR ISSUANCE OF EACH SERIES OF MEDIUM-
TERM DEBT SECURITIES
At any time, and from time to time, Securities (sometimes referred to
herein as "Medium-Term Debt Securities") of each series created pursuant to the
provisions of this Article Three may be executed by the Company and delivered to
the Trustee and shall be authenticated by the Trustee and delivered to, or upon
the order of, the Company upon receipt by the Trustee of the following:
21
(a) A Board Resolution or Board Resolutions authorizing the execution,
authentication and delivery of Medium-Term Debt Securities up to a specified
aggregate principal amount, in such series and subject to such terms as shall be
established by officers of the Company authorized by such resolutions to
establish such series and terms.
(b) A Medium-Term Debt Securities Certificate requesting the Trustee to
authenticate and deliver Medium-Term Debt Securities of a series as contemplated
by Section 4.2, and specifying the following terms with respect to the Medium-
Term Debt Securities of the particular series, authorized pursuant to the Board
Resolution or Board Resolutions referred to in Subsection (a) above:
(1) the title of the Medium-Term Debt Securities of the series
(which shall distinguish the Medium-Term Debt Securities of the series
from all other Securities);
(2) the date of the Medium-Term Debt Securities of the series;
(3) any limit upon the aggregate principal amount of the Medium-
Term Debt Securities of the series which may be authenticated and
delivered under this Article Three (except for Medium-Term Debt
Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Medium-Term Debt Securities of
the series pursuant to Section 4.3, 4.4, 4.5, 10.6 or 12.7 and except
for any Medium-Term Debt Securities which, pursuant to Section 4.2, are
deemed never to have been authenticated and delivered hereunder);
(4) the date or dates on which the principal (and premium, if
any) of any of the Medium-Term Debt Securities of the series are payable
or the method of determination thereof, which in any event may not be
less than nine months subsequent to the date of the first authentication
of Medium-Term Debt Securities of the series;
(5) the rate or rates, or the method of determination thereof, at
which any of the Medium-Term Debt Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Medium-Term Debt Securities of the series that are Registered Securities
on any Interest Payment Date;
(6) If an Original Issue Discount security, the Yield to
Maturity;
(7) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Medium-Term Debt Securities and
Coupons, if any, of the series shall be payable and the office or agency
for the Medium-Term Debt Securities of the series maintained by the
Company pursuant to Section 11.2;
22
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Medium-Term
Debt Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(9) the terms of any sinking fund and the obligation, if any, of
the Company to redeem or purchase Medium-Term Debt Securities of the
series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Medium-
Term Debt Securities of the series shall be redeemed or purchased, in
whole or in part;
(10) the terms of the obligation of the Company, if any, to permit
the conversion of the Medium-Term Debt Securities of the series into
shares or other securities of the Company or of any other corporation;
(11) the terms, if any, for the attachment to Medium-Term Debt
Securities of the series of warrants, options or other rights to
purchase or sell shares or other securities of the Company;
(12) if other than denominations of $1,000 and in any integral
multiple thereof, if Registered Securities, and $5,000 if Bearer
Securities, for Medium-Term Debt Securities denominated in Dollars, the
denominations in which the Medium-Term Debt Securities of the series
shall be issuable;
(13) if other than the principal amount thereof, the portion of
the principal amount of any of the Medium-Term Debt Securities of the
series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.2;
(14) the application, if any, of Section 5.3, or such other means
of satisfaction and discharge as may be specified for the Medium-Term
Debt Securities and Coupons, if any, of the series;
(15) any deletions or modifications of or additions to the Events
of Default set forth in Section 6.1 or covenants of the Company set
forth in Section 8.4, Article Nine or Article Eleven pertaining to the
Medium-Term Debt Securities of the series;
(16) if other than Dollars, the currency or currencies, or
currency unit or units, in which the Medium-Term Debt Securities of the
series will be denominated and/or in which payment of the principal of
(and premium, if any) and interest, if any, on any of the Medium-Term
Debt Securities of the series shall be payable and the Exchange Rate
Agent, if any, for such series;
(17) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series are to be payable at the
election of the Company or Holder thereof, or under some or all other
circumstances, in a currency or
23
currencies, or currency unit or units, other than that in which the
Medium-Term Debt Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of the
Medium-Term Debt Securities are to be so payable, including without
limitation the application of Section 4.10(b) and any deletions to,
modification of or additions to the provisions thereof, and any
provision requiring the Holder to bear currency exchange costs by
deduction from such payments;
(18) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Medium-Term Debt Securities of
the series may be determined with reference to an index based on (i) a
currency or currencies or currency unit or units other than that in
which such Securities are stated to be payable or (ii) any method, not
inconsistent with the provisions of this Indenture, specified in or
pursuant to such Board Resolution, then in each case (i) and (ii) the
manner in which such amounts shall be determined;
(19) whether the Medium-Term Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities (with or without
Coupons), or any combination thereof, whether Bearer Securities may be
exchanged for Registered Securities of the series and whether Registered
Securities may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any Medium-Term Debt Securities of
the series are to be issuable initially in temporary global form and
whether any Medium-Term Debt Securities of the series are to be issuable
in definitive global form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive Global Medium-Term
Debt Security may exchange such interests for Medium-Term Debt
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which and the place or places
where any such exchange may occur, if other than in the manner provided
in Section 4.4;
(20) whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of the
Medium-Term Debt Securities of the series to any Holder who is not a
U.S. Person (including a definition of such term), in respect of any tax
assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Medium-Term Debt
Securities rather than pay additional amounts (and the terms of any such
option);
(21) the Person to whom any interest on any Medium-Term Debt
Security of the series shall be payable, if other than the Person in
whose name that Medium-Term Debt 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
24
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 Medium-Term Debt Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 4.3;
(22) the forms of the Medium-Term Debt Securities and Coupons, if
any, of the series; and
(23) The Subordination of such Medium-Term Debt Securities to any
other indebtedness of the Company, including without limitation, the
Medium-Term Debt Securities of any other series; and
(24) any other terms of any of the Medium-Term Debt Securities of
the series (which terms shall not be inconsistent with the provisions of
this Indenture).
Unless the Company shall be required to deliver an Officers'
Certificate pursuant to Subsection (d) below in connection with the
authentication of the Medium-Term Debt Securities of the series, the delivery of
such Medium-Term Debt Securities Certificate to the Trustee shall be deemed to
be a certification by the Company that all matters certified in the most recent
Officers' Certificate delivered to the Trustee pursuant to Subsection (d) below
continue to be true and correct, as if such Officers' Certificate related to the
Medium-Term Debt Securities covered by such Medium-Term Debt Securities
Certificate, on and as of the date of such Medium-Term Debt Securities
Certificate. The delivery of such Medium-Term Debt Securities Certificate also
shall be deemed to be a certification that the Board Resolution or Board
Resolutions referred to in Subsection (a) above are in full force and effect on
and as of the date of such Medium-Term Debt Securities Certificate and that the
terms and form or forms of the Medium-Term Debt Securities and Coupons, if any,
of the series have been established by an officer or officers of the Company
authorized by such Board Resolution or Board Resolutions in accordance with the
provisions thereof and hereof.
(c) If (1) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this Subsection (c)
with respect to the Medium-Term Debt Securities authorized pursuant to the Board
Resolution or Board Resolutions referred to in Subsection (a) above or (2) if
the Medium-Term Debt Securities Certificate referred to in Subsection (b) above
specifies a means of satisfaction and discharge other than the application of
Section 5.3 with respect to the series of Medium-Term Debt Securities to which
such Medium-Term Debt Securities Certificate relates, an Opinion of Counsel that
the Medium-Term Debt Securities have been duly authorized by resolutions of the
Board of Directors of the Company, subject to the establishment of certain terms
of the Medium-Term Debt Securities and Coupons, if any, of the series by
officers of the Company authorized by such resolutions to establish such terms,
that when the terms of the Medium-Term Debt Securities and Coupons, if any, of
the series have been established as provided in such resolutions and in this
Indenture and the Medium-Term Debt Securities and Coupons, if any, of the series
have been executed, authenticated and delivered in accordance with the
provisions of this Indenture, the Medium-
25
Term Debt Securities and Coupons, if any, of the series, assuming they do not
violate any applicable law then binding on the Company, will constitute legal,
valid and binding obligations of the Company (subject to applicable bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium or
other laws affecting creditors' rights generally from time to time in effect,
the enforceability of the Company's obligations also being subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and to such other exceptions that are
customary in the circumstances) entitled to the benefits of this Indenture,
equally and ratably with all other Securities and Coupons, if any, of such
series theretofore issued and then outstanding hereunder, and that the amount of
Securities then outstanding under this Indenture, including the Medium-Term Debt
Securities of the series, will not exceed the amount at the time permitted by
law or this Indenture.
(d) If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this Subsection (d) to the Trustee during the
immediately preceding 12-month period, an Officers' Certificate stating that the
Company is not in default under this Indenture, that the issuance of the Medium-
Term Debt Securities and Coupons, if any, of the series will not result in any
breach of any of the terms, conditions or provisions of, or constitute a default
under, the Company's Memorandum of Association or Articles of Association, or
other comparable organizational documents, as applicable, or any indenture,
mortgage, deed of trust or other agreement or instrument to which the Company is
a party or by which it is bound, or any order of any court or administrative
agency entered in any proceeding to which the Company is a party or by which it
may be bound or to which it may be subject, that all laws and requirements with
respect to the execution and delivery by the Company of the Medium-Term Debt
Securities and Coupons, if any, of the series have been complied with and that
all conditions precedent provided in this Indenture relating to the
authentication and delivery of the Medium-Term Debt Securities and Coupons, if
any, of the series have been complied with.
(e) Such other documents as the Trustee shall reasonably request.
SECTION 3.2 FORM OF MEDIUM-TERM DEBT SECURITIES
The Medium-Term Debt Securities and Coupons, if any, of each series
shall be in such forms as shall be specified as contemplated by Section 3.1.
ARTICLE FOUR
THE SECURITIES
SECTION 4.1 FORM AND DENOMINATION
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 in Section 2.2 or
Section 3.1, as the case may be, and (subject to Section 4.2) set forth in the
Officers' Certificate or Medium-Term Debt Securities Certificate
26
referred to in Section 2.2 or Section 3.1, as the case may be, or in any
indenture supplemental hereto.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 2.2 or Section 3.1, as the case
may be. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $l,000 and in any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee. Each Security shall bear the
appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 4.2 EXECUTION, DELIVERY, DATING AND AUTHENTICATION
The Securities shall be executed on behalf of the Company by a manual
or facsimile signature of its Chairman, its President, any of its Vice
Presidents, its Treasurer, any Assistant Treasurer, its Secretary, any Assistant
Secretary or any person acting in a similar capacity, under its corporate seal
reproduced thereon. Any Coupons shall be executed on behalf of the Company by
the manual or facsimile signature of any such officer of the Company. In case
any of the above referenced officers of the Company who shall have signed any of
the Securities or Coupons shall cease to be such officer before the Securities
so signed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities and/or
Coupons had not ceased to be such officer; and any Securities or Coupons may be
signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security or Coupon, shall be such officers of the Company,
although at the date of the execution of this Indenture any such person was not
such officer.
At any time and from time to time, the Company may deliver Securities
of any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of any
Medium-Term Debt Securities) with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order (or, in the case of Medium-Term Debt Securities of any series, upon
receipt of a Medium-Term Debt Securities Certificate and in accordance with the
terms thereof) shall authenticate and make available for delivery such
Securities; PROVIDED, HOWEVER, that, unless otherwise specified in the Board
Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt
Securities in the Medium-Term Debt Securities Certificate) with respect to an
Bearer Securities, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 4.3 which is
27
not in global form) shall be mailed or otherwise delivered to any location in
the United States; and PROVIDED FURTHER that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-Term
Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to
such Bearer Securities, such Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security (including any temporary Bearer Security issued pursuant to Section 4.3
which is not in global form) shall have furnished to the Company or any agent,
underwriter or selling group member a certificate substantially in the form set
forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to
the earlier of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. In connection with the original issuance of any Bearer Security and
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt
Securities Certificate) with respect to such Bearer Securities, a confirmation
substantially in the form set forth in Exhibit B.5 to this Indenture shall be
sent to each purchaser thereof. If any Security shall be represented by a
definitive Global Bearer Security, then, for purposes of this Section and
Section 4.3, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such definitive Global Bearer Security.
Except as permitted by Section 4.5, the Trustee shall not authenticate and make
available for delivery any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
The Trustee shall not be required to authenticate Securities of any
series 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, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 3.1(b)(2), each
Registered Security shall be dated the date of its authentication, and each
Bearer Security and any 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
below executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has 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 4.8
together with a written statement (which need not comply with Section 1.2 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.
28
The Trustee's certificate of authentication shall be in substantially
the following form:
Dated:
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
_____________________, as Trustee
By:______________________________
Authorized Signatory
29
SECTION 4.3 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order (or, in the case of Medium-Term Debt
Securities, receipt of the Medium-Term Debt Securities Certificate with respect
to such Medium-Term Debt Securities) the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced conclusively by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall be
exchanged in accordance with the provisions of the following subsections), 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 11.2 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) the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like aggregate principal amount of definitive Securities
of the same series and of like tenor or authorized denominations; PROVIDED,
HOWEVER, that, unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; 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 4.2.
If temporary Bearer Securities of any series are issued in global
form, such temporary Global Bearer Securities shall, unless otherwise specified
as contemplated by Section 2.2 or Section 3.1, as the case may be, be delivered
to the London office of the Depositary, for the benefit of Euroclear and CEDEL
Bank, societe anonyme ("CEDEL"), for credit to the respective accounts of the
beneficial owners of interests in such Securities (or to such other accounts as
they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole
30
or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such temporary Global Security, an equal aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such temporary Global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary Global
Security shall be in bearer form, registered form, definitive Global form or any
combination thereof, as specified as contemplated by Section 2.2 or Section 3.1,
as the case may be, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, upon such presentation by the Depositary, such temporary Global Security
shall be accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary Global Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary Global Security held for its account then to be exchanged, each in the
form set forth in Exhibit B.2 to this Indenture; PROVIDED FURTHER that
definitive Bearer Securities (including a definitive Global Bearer Security)
shall be delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 4.2.
Unless otherwise specified as contemplated by Section 2.2 or Section
3.1, as the case may be, the interest of a beneficial owner of Securities of a
series in a temporary Global Bearer Security shall be exchanged for definitive
Bearer Securities of the same series and of like tenor following the Exchange
Date when the beneficial owner instructs Euroclear or CEDEL, as the case may be,
to request such exchange on his behalf and delivers to Euroclear or CEDEL, as
the case may be, a certificate substantially in the form set forth in Exhibit
B.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 Euroclear,
CEDEL, the Trustee, any Authenticating Agent appointed for such series of
Securities and any Paying Agent appointed for such series of Securities. Unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, any such exchange shall be made free of charge to the beneficial owners
of such temporary Global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. The definitive Bearer
Securities 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 provided above, 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 2.2 or Section 3.1, as the case may be, interest
payable on a temporary Global Bearer Security on an Interest Payment Date for
Securities of such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and CEDEL on such Interest Payment Date upon delivery by
Euroclear and CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B.3 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 (or to such other
31
accounts as they may direct) on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate substantially
in the form set forth in Exhibit B.4 to this Indenture. Any interest so received
by Euroclear and CEDEL 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
11.3.
SECTION 4.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 11.2 a register (being the
combined register of the Security Registrar and all additional transfer agents
designated pursuant to Section 11.2 for the purpose of registration of transfer
of Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and the
registration of transfers of Registered Securities. The Trustee is hereby
appointed the initial Security Registrar, with the Security Register initially
to be kept at __________________________ at all reasonable times each register
maintained by the Security Registrar and any additional transfer agents shall be
open for inspection by the Trustee.
Subject to Section 4.11, 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 11.2 for such purpose in a Place of Payment for
such series, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, 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. 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 make available for delivery, the Securities which
the Holder making the exchange is entitled to receive. Unless otherwise
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
Bearer Securities may not be issued in exchange for Registered Securities.
Subject to Section 4.11, at the option of the Holder and unless
otherwise specified as contemplated by Section 2.2 or Section 3.1, as the case
may be, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default appertaining thereto. 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 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
32
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 11.2, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (1) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (2) any Special Record Date and before the opening of business
at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, any definitive
Global Bearer Security shall be exchangeable only as provided in this
Subsection. If the beneficial owners of interests in a definitive Global Bearer
Security are entitled to exchange such interests for Securities of such series
and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in an aggregate principal amount
equal to the principal amount of such definitive Global Bearer Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such definitive Global Bearer Security shall be surrendered
by the Depositary or such other depositary or Depositary) as shall be specified
in the Company Order or Medium-Term Debt Securities Certificate, as the case may
be, with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make available
for delivery, in exchange for each portion of such definitive Global Bearer
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
definitive Global Bearer Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, 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
33
business 15 Business Days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; PROVIDED FURTHER that no
Bearer Security delivered in exchange for a portion of a definitive Global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
definitive Global Bearer Security after the close of business at the office or
agency where such exchange occurs on (1) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (2) 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, 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 definitive Global Bearer Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar or
any transfer agent, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 4.3, Section 10.6 or Section 12.7 not involving
any transfer.
The Company shall not be required (1) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 Business 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 day of mailing of the relevant
notice of redemption, or (2) 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 (3) to exchange
any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like
tenor; PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
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SECTION 4.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security or Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor 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 the surrendered Security,
PROVIDED that if such new Security is a Bearer Security, such Security shall be
delivered only outside the United States.
If there shall be delivered to the Company and the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Coupon and (2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, 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 (upon surrender to the Trustee of
such Security 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 or Coupon, pay such Security
or Coupon; PROVIDED, HOWEVER, that principal of (and premium, if any) and any
interest on Bearer Securities shall, except as otherwise provided in Section
11.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 2.2 or Section 3.1,
as the case may be, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security or Coupon of any series issued pursuant to this
Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon
shall constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities or
Coupons of that series duly issued hereunder.
35
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 4.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Unless otherwise provided as contemplated by Section 2.2 or Section
3.1, as the case may be, 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. At the option of
the Company, interest on the Registered Securities of any series that bears
interest may be paid by mailing a check to the address of any Holder as such
address shall appear in the Security Register.
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 in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series
and the date of the 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 Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
36
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
If any installment of interest the Stated Maturity of which is on or
prior to the Redemption Date for any Security called for redemption pursuant to
Article Twelve is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section and Section 4.4,
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 4.7 PERSONS DEEMED OWNERS
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 4.4, 4.6 and 4.11
and unless otherwise specified as contemplated by Section 2.2 or Section 3.1, as
the case may be) interest on such Security and for all other purposes
whatsoever, whether or not such Security is 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 shall pass by delivery.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any Coupon as the absolute
owner of such Security or Coupon for the purpose of receiving payment thereof or
on account thereof (unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be) 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 4.8 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 Bearer Securities and unmatured Coupons held by the
Trustee pending such cancellation shall be deemed to be delivered for
37
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 to the Trustee 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 in a manner selected by the Trustee unless otherwise directed by
a Company Order; PROVIDED, HOWEVER, that the Trustee may, but shall not be
required to, destroy such canceled Securities and Coupons.
SECTION 4.9 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, 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 4.10 CURRENCY AND MANNER OF PAYMENT IN RESPECT OF SECURITIES
The provisions of this Section shall apply to the Securities of any
series unless otherwise provided as contemplated by Section 2.2 or Section 3.1,
as the case may be.
(a) The following payment provisions shall apply to any Registered
Security of any series denominated in a Foreign Currency or any currency unit,
including without limitation, the ECU, except as provided in Subsection (b)
below:
(1) Except as provided in Subsection (a)(2) or in Subsection
(e) below, payment of principal of and premium, if any, on such
Registered Security will be made at the Place of Payment by delivery
of a check in the currency or currency unit in which the Security is
denominated on the payment date against surrender of such Registered
Security, and any interest on any Registered Security will be paid at
the Place of Payment by mailing a check in the currency or currency
unit in which such interest is payable (which shall be the same as
that in which the Security is denominated unless otherwise provided)
to the Person entitled thereto at the address of such Person appearing
on the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series denominated
in any currency unit, including without limitation, the ECU, if the following
provisions (or any substitute therefor, or addition thereto, not inconsistent
with this Indenture) are established pursuant to Section 2.2 or Section 3.1, as
the case may be, and if the Company has not, before
38
the delivery of the election referred to in Clause (1) below, deposited funds or
securities in compliance with Section 5.1 or Subsection (a)(1) or (if specified
pursuant to Section 2.2 or Section 3.1, as the case may be) Subsection (a)(2) of
Section 5.3, the following payment provisions shall apply to any payment to be
made prior to the giving of any notice to Holders of any election to redeem
pursuant to Section 12.4, except as otherwise provided in Subsections (e) and
(f) below:
(1) A Holder of Securities of a series shall have the option to
elect to receive payments of principal of, premium, if any, and
interest, if any, on such Securities in a currency or currency unit
(including Dollars), other than that in which the Security is
denominated, such election, as designated in the certificates for such
Securities (or as provided by Section 2.2 or Section 3.1, as the case
may be, or a supplemental indenture hereto with respect to
uncertificated securities), shall be made by delivering to the Paying
Agent a written election, to be in form and substance satisfactory to
the Paying Agent, not later than the close of business in New York, New
York, on the day 15 days prior to the applicable payment date. Such
election will remain in effect for such Holder until changed by the
Holder by written notice to the Paying Agent (but any such written
notice must be received by the Paying Agent not later than the close of
business on the day 15 days prior to the next payment date to be
effective for the payment to be made on such payment date and no such
change may be made with respect to payments to be made on any Security
of such series with respect to which notice of redemption has been
given by the Company pursuant to Article Twelve). Any Holder of any
such Security who shall not have delivered any such election to the
Paying Agent in accordance with this Subsection (b) will be paid the
amount due on the applicable payment date in the relevant currency unit
as provided in Subsection (a) of this Section. Payment of principal of
and premium, if any, shall be made on the payment date therefor against
surrender of such Security. Payment of principal, premium, if any, and
interest, if any, shall be made at the Place of Payment by mailing at
such location a check, in the applicable currency or currency unit, to
the Holder entitled thereto at the address of such Holder appearing on
the Security Register.
(2) Payment of the principal of, premium, if any, and interest,
if any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, and interest, if
any, on any Bearer Security will be made, except as provided in Section 4.3 with
respect to temporary Global Securities, unless otherwise specified pursuant to
Section 2.2 or Section 3.1, as the case may be, and/or Section 10.1(8), at such
place or places outside the United States as may be designated by the Company
pursuant to any applicable laws or regulations by any appropriate method in the
currency or currencies or currency unit or units in which the Security is
payable (except as provided in Subsection (e) below) on the payment date
therefor against surrender of the Bearer Security, in the case of payment of
principal and premium, if any, or the relevant Coupon, in the
39
case of payment of interest, if any, to a Paying Agent designated for such
series pursuant to Section 11.2.
(d) Not later than ten Business Days (with respect to any Place of
Payment) prior to each payment date, the Paying Agent shall deliver to the
Company a copy of its record of the respective aggregate amounts of principal
of, premium, if any, and interest, if any, on the Securities to be made on such
payment date, in the currency or currency unit in which each of the Securities
is payable, specifying the amounts so payable in respect of Registered
Securities and Bearer Securities and in respect of the Registered Securities as
to which the Holders of Securities denominated in any currency unit shall have
elected to be paid in another currency or currency unit as provided in
Subsection (b) above. If the election referred to in Subsection (b) above has
been provided for pursuant to Section 2.2 or Section 3.1, as the case may be,
and if at least one Holder has made such election, then, not later than the
fifth Business Day (with respect to any Place of Payment) prior to the
applicable payment date the Company will deliver to the Trustee an Exchange Rate
Officers' Certificate in respect of the Dollar or Foreign Currency or currency
unit payments to be made on such payment date. The Dollar or Foreign Currency or
currency unit amount receivable by Holders of Registered Securities denominated
in a currency unit who have elected payment in another currency or currency unit
as provided in Subsection (b) above shall be determined by the Company on the
basis of the applicable Official Currency Unit Exchange Rate set forth in the
applicable Exchange Rate Officers' Certificate.
(e) If a Foreign Currency in which any Security is denominated or
payable ceases to be recognized both by the government of the country which
issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if ECU ceases
to be used within the European Monetary System, or if any other currency unit in
which a Security is denominated or payable ceases to be used for the purposes
for which it was established, in each case as determined in good faith by the
Company, then with respect to each date for the payment of principal of,
premium, if any, and interest, if any, on the applicable Security denominated or
payable in such Foreign Currency, ECU or such other currency unit occurring
after the last date on which such Foreign Currency, ECU or such other currency
unit was so used (the "Conversion Date"), the Dollar shall become the currency
of payment for use on each such payment date (but ECU or the Foreign Currency or
the currency unit previously the currency of payment shall, at the Company's
election, resume being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which gave rise to
the Dollar becoming such currency no longer prevail, in each case as determined
in good faith by the Company). The Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holder of such
Security with respect to such payment date shall be the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the currency unit, as determined by the Exchange Rate Agent (which shall be
delivered in writing to the Trustee not later than the fifth Business Day prior
to the applicable payment date) as of the Conversion Date or, if later, the date
most recently preceding the payment date in question on which such determination
is possible of performance, but not more than 15 days before such payment date
(such Conversion Date or date preceding a payment date as aforesaid being called
the "Valuation Date") in the manner provided in Subsection (g) or (h) below.
40
(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as provided
for by Subsection (b) and such Foreign Currency ceases to be used both by the
government of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, or if ECU ceases to be used within the European Monetary System, or
if another currency unit ceases to be used for the purposes for which it is
established, in each case as determined in good faith by the Company, such
Holder shall (subject to Subsection (e) above) receive payment in the currency
unit in which the Security is denominated. Each payment covered by an election
pursuant to Subsection (b) above shall be governed by the provisions of this
Subsection (f) (but, subject to any contravening valid election pursuant to
Subsection (b) above, the specified Foreign Currency or ECU or other currency
unit shall, at the Company's election, resume being the currency or currency
unit, as applicable, of payment with respect to Holders who have so elected, but
only with respect to payments on payment dates preceded by 15 Business Days
during which the circumstances which gave rise to such currency unit becoming
the currency unit of payment, no longer prevail, in each case as determined in
good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent as of each Valuation Date and shall be
obtained by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate on
the Valuation Date for such Component Currency.
(i) For purposes of this Section 4.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including without limitation, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units (including decimals) which such Component Currency represented in the
relevant currency unit, on the Conversion Date or, if ECU and such currency unit
is being used for settlement of transactions by public institutions of or within
the European Communities or was so used after the Conversion Date, the Valuation
Date or the last date the currency unit was so used, whichever is later. If
after such date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If after such date two or
more Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be replaced by
an amount in such single currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and such single
currency shall thereafter be a Component Currency. If after such date any
Component Currency
41
shall be divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified amounts of such two or more
currencies, the sum of which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date, for any currency or
currency unit the noon Dollar buying rate for that currency or currency unit, as
the case may be, for cable transfers quoted in New York City on such date as
certified for customs purposes by the Federal Reserve Bank of New York or such
other rate as may be established pursuant to Section 2.2 or Section 3.1, as the
case may be. If such rates are not available for any reason with respect to one
or more currencies or currency units for which an Exchange Rate is required, the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City or in the country of issue of the currency or currency unit in question, or
such other quotations as the Exchange Rate Agent shall deem appropriate. Unless
otherwise specified by the Exchange Rate Agent, if there is more than one market
for dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would, as determined in its sole
discretion and without liability on the part of the Exchange Rate Agent,
purchase such currency or currency unit in order to make payments in respect of
such securities.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit and the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company and all Holders of the Securities and
Coupons denominated or payable in the relevant currency or currency units. In
the event that a Foreign Currency ceases to be used both by the government of
the country which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, the
Company, after learning thereof, will immediately give notice thereof to the
Trustee (and the Trustee will promptly thereafter give notice in the manner
provided in Section 1.6 to the Holders) specifying the Conversion Date. In the
event the ECU ceases to be used within the European Monetary System, or any
other currency unit in which Securities or Coupons are denominated or payable,
ceases to be used for the purposes for which it was established, the Company,
after learning thereof, will immediately give notice thereof to the Trustee (and
the Trustee will promptly thereafter give notice in the manner provided in
Section 1.6 to the Holders) specifying the Conversion Date. Any actions taken
pursuant to the parentheticals at the end of the first sentence of Section
4.10(e) and at the end of Section 4.10(f) shall be promptly set forth in like
notices from the Company to the Trustee and then from the Trustee to the Holders
(which notice may be mailed with payment to the Holders).
Subject to the provisions of Sections 7.1 and 7.3, the Trustee shall
be fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent, and shall not otherwise have
any duty or obligation to determine such information independently.
42
SECTION 4.11 SECURITIES IN GLOBAL FORM
(a) If Securities of a series are issuable in global form, as
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
then, notwithstanding Subsection (a)(8) of Section 2.2 or Subsection (b)(9) of
Section 3.1, as the case may be, and the provisions of Section 4.1, such
Security shall represent such of the Outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced or increased to reflect exchanges. Any endorsement of a Global
Security 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 (or, in the case of Medium-Term Debt
Securities, the Medium-Term Debt Securities Certificate) to be delivered to the
Trustee pursuant to Section 4.2 or Section 4.3. Subject to the provisions of
Section 4.2 and, if applicable, Section 4.3, the Trustee shall deliver and
redeliver any Security in definitive global bearer form in the manner and upon
written instructions given by the Person or Persons specified therein or in the
applicable Company Order (or, in the case of Medium-Term Debt Securities, the
Medium-Term Debt Securities Certificate). If a Company Order (or, in the case of
Medium-Term Debt Securities, Medium-Term Debt Securities Certificate) pursuant
to Section 4.2 or 4.3 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement of delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel.
(b) Any Global Security shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, shall be
delivered by the Trustee or its agent to the Depositary or pursuant to the
Depositary's instruction and shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary."
(c) Notwithstanding any other provisions of this Section 4.11 or of
Section 4.4 and subject to the provisions of Subsection (d) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 4.4,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(d) (1) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the
Securities for such series ceases to be a clearing agency registered
under the Exchange Act or other applicable statute or regulation, the
Company shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global
43
Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee or its agent, upon receipt
of a company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like
tenor and terms in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global
Security.
(2) The Company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued or
issuable 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
Request for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such Global Security
or Securities representing such series or portion thereof in exchange
for such Global Security or Securities.
(3) If specified by the Company pursuant to Sections 2.2 and
3.1 with respect to Securities issued or issuable in the
form of a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in
whole or part for individual Securities of such series of
like tenor and terms in definitive form on such terms as
are acceptable to the Company and such Depositary.
Thereupon the Company shall execute, and the Trustee or its
agent 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 Person 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 an authorized
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 the
Holders thereof.
(4) In any exchange provided for in any of the preceding three
Clauses, the Company will execute and the Trustee or its
agent will authenticate and deliver individual Securities
in definitive registered form in authorized denominations.
Upon the exchange of the entire principal amount of a
Global Security for individual Securities, such Global
Security shall be cancelled by Trustee or its agent. Except
as provided in the preceding Clause, Securities issued in
exchange for a Global Security pursuant to this Section
44
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 or
the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in
whose names such Securities are so registered.
(e) The provisions of the last sentence of the fifth paragraph of
Section 4.2 shall apply to any Security represented by a Global Security if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Global Security together with written instructions (which need
not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of the fifth paragraph of Section 4.2.
(f) Notwithstanding the provisions of Section 4.6, unless otherwise
specified as contemplated by Section 2.2 or Section 3.1, as the case may be,
payment of principal of and any premium and any interest on any Global Security
shall be made to the Person or Persons specified therein.
(g) Notwithstanding the provisions of Section 4.7 and except as
provided in the preceding Subsection, the Company, and any agent of the Company
may, and the Trustee and any agent of the Trustee, at the direction of the
Company, may treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a definitive Global Security as shall be
specified in a written statement of the Holder of such definitive Global
Security or, in the case of a definitive Global Security in bearer form, of
Euroclear or CEDEL which is produced to the Trustee by such Person; PROVIDED,
HOWEVER, that none of the Company, the Trustee, the Security Registrar or any
Paying Agent shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 4.12 CUSIP, ISIN AND COMMON CODE NUMBERS
The Company in issuing the Securities may use a "CUSIP," "ISIN" or
"Common Code" number, and if so, the Trustee shall use the CUSIP, ISIN and
Common Code number in notices of redemption or exchange as a convenience to
Holders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN and
Common Code number printed in the notice or on the Securities, and the reliance
may be placed only on the other identification numbers printed on the
Securities. The Company shall promptly notify the trustee of any change in any
CUSIP, ISIN or Common Code number.
45
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 SATISFACTION AND DISCHARGE OF INDENTURE IN RESPECT OF
ANY SERIES OF SECURITIES
This Indenture shall upon Company Request cease to be of further
effect with respect to a series of Securities (except as to any surviving rights
of (as applicable) registration of transfer or exchange of Securities and
Coupons, if any, of such series herein expressly provided for), and the Trustee,
at the request and expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
series, when
(1) either
(i) all Securities and Coupons, if any, of such series
theretofore authenticated and delivered (other than (A) Securities and
Coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 4.5 and (B)
Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 11.3) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currency unit in which such Securities
and Coupons of such series are payable sufficient (in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all taxes or other
charges and assessments in respect thereof payable by the Trustee to pay
and discharge the entire indebtedness on such Securities and Coupons of
such series not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
46
date of such deposit (in the case of Securities and Coupons of such series
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series of Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
Securities of the series under this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series, the obligations of the Company in Sections 4.4, 4.5, 5.2,
5.4, 7.7 and 11.2, the Company's rights of optional redemption, if any, the
obligations of the Trustee to any Authenticating Agent under Section 7.15 and,
if money shall have been deposited with the Trustee pursuant to Subsection
(1)(B) of this Section 5.1, the obligations of the Trustee under Section 5.2 and
the last paragraph of Section 11.3 shall survive.
SECTION 5.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 11.3, all
money deposited with the Trustee pursuant to Sections 5.1 and 5.3 (and all money
received as payment in connection with U.S. Government Obligations and Foreign
Government Securities deposited pursuant to Section 5.3) shall be held in trust
and applied by it, in accordance with the provisions of the Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been
deposited with the Trustee.
SECTION 5.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF
ANY SERIES
(a) If this Section is specified, as contemplated by Section 2.2 or
Section 3.1, as the case may be, to be applicable to Securities and Coupons, if
any, of any series, at the Company's option, either
(1) the Company will be deemed to have been Discharged (as
defined below) from its obligations with respect to Securities and
Coupons, if any, of such series or
(2) the Company will cease to be under any obligation with
respect to such series to comply with any term, provision or condition
set forth in (i) Sections 9.1 and 9.2 or (ii) the instrument or
instruments setting forth the terms, provisions or conditions of such
series pursuant to Section 2.2 or Section 3.1, as the case may be
(PROVIDED, in the case of this Clause (ii), that such instrument or
instruments specify which terms, provisions or conditions, if any, are
subject to
47
this Subsection (a)(2) and that no such instrument may specify that
the Company may cease to comply with any obligations as to which it
may not be Discharged pursuant to the definition of "Discharged").
(b) A Discharge pursuant to Subsection (a)(1) above shall be
effective with respect to the Securities and Coupons, if any, of such series
after the applicable conditions set forth below in (1) and either Clause (2) or
Clause (3) have been satisfied, and the Company's release from its obligations
to comply with certain obligations with respect to such series pursuant to
Subsection (a)(2) above shall be effective with respect to the Securities and
Coupons, if any, of such series on the first day after the applicable conditions
set forth below in Clause (1) and either Clause (2) or Clause (3) have been
satisfied:
(1) the Company has:
(i) paid or caused to be paid all other sums payable with
respect to the Outstanding Securities and Coupons, if any,
of such series (in addition to any required under Subsection
(b)(2) or (b)(3)); and
(ii) 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 and Coupons, if any, of any such series have been
complied with;
(2) (i) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as a trust fund specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities and Coupons, if any, of such series (A) money in an amount (in
such currency, currencies or currency unit or units in which any
Outstanding Securities and Coupons, if any, of such series are payable) or
(B) in the case of Securities and Coupons, if any, denominated in Dollars,
U.S. Government Obligations or, in the case of Securities and Coupons, if
any, denominated in a Foreign Currency, Foreign Government Securities,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal (including any premium) and interest,
if any, under the Securities and Coupons, if any, of such series, money in
an amount or (C) a combination of Clauses (A) and (B), which in any case of
Clauses (A), (B) and (C) is sufficient (in the opinion with respect to
Clauses (B) and (C) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) to pay and discharge each installment of principal of (including
premium, if any, on), and interest, if any, on, the Outstanding Securities
and Coupons, if any, of such series on the dates such installments of
interest or principal are due (either at maturity, upon redemption or
otherwise, as the case may be) in the currency, currencies or currency unit
or units, in which such Securities and Coupons, if any, are payable;
48
(ii) (A) no Event of Default or event (including such
deposit) which with notice or lapse of time would become an
Event of Default shall have occurred and be continuing on
the date of such deposit and after giving effect to such
deposit, (B) no Event of Default as defined in Clause (5) or
Clause (6) of Section 6.1, or event which with notice or
lapse of time or both would become an Event of Default under
either such clause, shall have occurred within 90 days after
the date of such deposit, and (C) such deposit and the
related intended consequence under Subsection (a)(1) or
Subsection (a)(2) above will not result in any default or
event of default under any material indenture, agreement or
other instrument binding upon the Company or any Subsidiary;
(iii) (A) in the event of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (x) the Company has received from the
Internal Revenue Service a ruling, or (y) since the date of
this Indenture there has been a change in the applicable
Federal income tax law, in either case, to the effect that,
and based thereon such Opinion of Counsel shall confirm
that, the Holders of Securities of such series will not
recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject
to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such defeasance had not occurred;
(B) in the event of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not
occurred; and
(3) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
2.2 or Section 3.1, as the case may be, to be applicable to the
Securities and Coupons, if any, of such series.
(c) Any deposits with the Trustee referred to in Subsection (b)(2)(i)
above will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. If any Outstanding Securities and
Coupons, if any, of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement will provide therefor and the Company will make arrangements for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
49
SECTION 5.4 REINSTATEMENT
If the Trustee is unable to apply any money, U.S. Government
Obligations or Foreign Government Securities in accordance with Section 5.1 by
reason of any legal proceeding or 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 and the
Securities and Coupons, if any, of such series shall bc revived and reinstated
as though no deposit had occurred pursuant to Section 5.1 until such time as the
Trustee is permitted to apply all such money, U.S. Government Obligations or
Foreign Government Securities in accordance with this Article Five; PROVIDED,
HOWEVER, that if the Company has made any payment of interest on or principal of
(and premium, if any) on any Securities and Coupons, if any, of such series
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such series of Securities and Coupons, if any,
to receive such payment from the money, U.S. Government Obligations or Foreign
Government Securities held by the Trustee.
SECTION 5.5 DEFINITIONS
The following terms, as used in this Article, shall have the following
meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and Coupons, if any, of the series as to which this Section is
specified as applicable as aforesaid and to have satisfied all the obligations
under this Indenture relating to the Securities and Coupons, if any, of such
series (and the Trustee, at the request and expense of the Company, will execute
proper instruments acknowledging the same), except (1) the rights of Holders
thereof to receive, from the trust fund described in Section 5.3(b)(2)(i),
payment of the principal of (and premium, if any) and the interest, if any, on
such Securities and Coupons, if any, when such payments are due, (2) the
Company's obligations with respect to such Securities and Coupons, if any, under
Sections 4.4 and 4.5 (insofar as applicable to Securities of such series), 5.2,
5.4, 11.2 and 11.3 (last paragraph only) the Company rights of optional
redemption, if any, and the Company's obligations to the Trustee under Section
7.7, (3) the rights of Holders of Securities of any series with respect to the
currency or currency units in which they are to receive payments of principal,
premium, if any, and interest, if any, and (4) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, will survive such discharge. The
Company will reimburse the trust fund for any loss suffered by it as a result of
any tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or Foreign Government Securities, as the case may be, or
any principal or interest paid on such obligations, and, subject to the
provisions of Section 7.7, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect to Securities and
Coupons, if any, of any series that are denominated in a Foreign Currency,
securities that are (1) direct obligations of the government that issued or
caused to be issued such currency for the payment of which obligations its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of such government the
timely
50
payment of which is unconditionally guaranteed as a full faith and credit
obligation by such government, which, in either case under Clause (1) or Clause
(2), are not callable or redeemable at the option of the issuer thereof.
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, which, in either
case under Clause (1) or Clause (2), are not callable or redeemable at the
option of the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE SIX
REMEDIES
SECTION 6.1 EVENTS OF DEFAULT
"Event of Default" with respect to any series of Securities means each
one of the events specified below in this Section 6.1, unless it is either
inapplicable to a particular series or is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Medium-Term Debt
Securities Certificate establishing such series of Securities:
(1) default in the payment of any installment of interest upon
any of the Securities of such series, as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of or premium, if
any, on any of the Securities of such series, as and when the same
shall become due and payable (subject to Clause (3) below) either at
maturity, upon redemption, by declaration or otherwise; or
(3) default in the making of any payment for a sinking, purchase
or analogous fund provided for in respect of such series of
Securities, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(4) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in respect of the Securities of such series, or in this
Indenture contained with respect to such series,
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for a period of 90 days after the date on which written notice of such
failure requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Securities of such series at the time
Outstanding; or
(5) entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case under any applicable Federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(6) commencement by the Company of a voluntary case under any
applicable Federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent by the Company to
the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official)
of the Company or for any substantial part of its property, or any
general assignment by the Company for the benefit of creditors, or
failure by the Company generally to pay its debts as they become due,
or the taking by the Company of any corporate action in furtherance of
any of the foregoing; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in each and every such case,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series (except in the case of an
Event of Default specified in Clause (5) or Clause (6) of Section 6.1) may
declare the principal amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series,
together with accrued interest thereon, if any, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount), together with accrued interest thereon, if any, shall become
immediately due and payable. If an Event of Default specified in Clause (5) or
Clause (6) of Section 6.1 occurs, such principle amount shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities of that series,
(ii) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities without
duplication of any amount thereof paid or deposited pursuant to
Clause (i) above or Clause (iii) below,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities without duplication of any
amount thereof paid or deposited pursuant to Clause (i) above or
Clause (ii) above, and
(iv) in Dollars, all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE
The Company covenants that if:
(1) default shall be made in the payment of any installment of
interest on any Security or Coupon as and when the same shall become
due and payable, and such default shall have continued for the period
of grace provided for with respect to such Security or Coupon, as the
case may be,
53
(2) default shall be made in the payment of the principal of or
premium, if any, on any Security as and when the same shall have
become due and payable (subject to Clause (3) below), whether at
maturity of the Security or upon redemption or by declaration or
otherwise, and such default shall have continued for any period of
grace provided for with respect to such Security, or
(3) default shall be made in the payment for any sinking,
purchase or analogous fund provided for in respect of any Security as
and when the same shall become due and payable, and such default shall
have continued for any period of grace provided for with respect to
such Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and Coupons, if any, the whole amount then due and
payable on such Securities and Coupons, if any, for principal (and premium, if
any) and interest, if any, 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 installments of interest, if any, at the rate or rates
prescribed therefor in such Securities and Coupons, if any, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and Coupons, if
any, 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 and Coupons, if any, wherever situated.
If an Event of Default with respect to Securities and Coupons, if any,
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 and/or Coupons of such series 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 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
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,
54
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial procee ding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
and/or Coupons or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; PROVIDED
that the Trustee may, on the behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official, or be a member of a creditors' or
similar committee.
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES
All rights of action and claims under this Indenture or the Securities
and Coupons, if any, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons, if any, or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and Coupons, if any, in respect of which such judgment has been
recovered.
SECTION 6.6 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 and Coupons, if any,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under
Section 7.7;
55
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
Coupons, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities
and/or Coupons for principal (and premium, if any) and interest, if
any, respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 6.7 LIMITATION ON SUITS
No Holder of Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) an Event of Default with respect to Securities of such
series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series or, in the case of an Event of
Default specified in Clause (5) or Clause (6) of Section 6.1, of all
series (voting as a class) with respect to which such Event of Default
has occurred and is continuing, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series or, in the case of an Event of Default specified in Clause (5)
or Clause (6) of Section 6.1, of all series (voting as a class) with
respect to which such Event of Default has occurred and is continuing;
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 (including without limitation the provisions of Section 6.12)
to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
56
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST
Notwithstanding any other provision in this Indenture, the Holder of
any Security or any 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 4.6) interest, if any, on such Security or Coupon on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 6.9 RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder 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 and
determination in such proceeding, the Company, the Trustee and the Holders 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 had been instituted.
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and/or Coupons, if
any, in the last paragraph of Section 4.5, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders 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 6.11 DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Securities
and/or Coupons 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. Subject to the provisions of
Section 6.7, every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12 CONTROL BY HOLDERS
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series; PROVIDED that
57
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 7.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Trust Officer or Officers of the
Trustee, determine that the action so directed would involve the
Trustee in personal liability.
SECTION 6.13 WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or in the payment of
any sinking or purchase fund or analogous obligation with respect to
the Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect
to such series, and any Event of Default with respect to such series 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 6.14 UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of a Security
and/or Coupon by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the 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 for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on any Security or the
payment of interest on any Coupon on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
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SECTION 6.15 WAIVER OF USURY, STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) 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 has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(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) or Subsection (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Trust Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
59
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, given pursuant to Section 6.12,
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 7.2 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 notice as provided in Section 1.6 of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a default in the
payment of the principal of (or premium, if any, on) or interest on any Security
of such series or in the payment of any sinking fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible Trust
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; PROVIDED
FURTHER that in the case of any default of the character specified in Section
6.1(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 90 days after the occurrence of such default. 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.
SECTION 7.3 CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 7.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance 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 reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
60
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security and
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiries or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or counsel, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or counsel
appointed with due care (and, in the case of any agent, with the prior
written consent of the Company; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no
61
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. 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 7.5 MAY HOLD SECURITIES.
The Trustee, 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 or warrants to purchase Securities and, subject
to Sections 7.8 and 7.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
SECTION 7.6 MONEY HELD IN TRUST.
Except as provided in Section 1.15, money held by the Trustee or any
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required by law. The Trustee or any Paying Agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 7.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time in Dollars such
compensation as shall be agreed to in writing between the Company and
the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it
harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based upon, or measured or
determined by, the income of the Trustee) incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or
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collected by the Trustee as such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.1(5) and Section 6.1(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal, state or foreign bankruptcy,
insolvency or other similar law. The provisions of this Section shall survive
the termination of this Indenture.
SECTION 7.8 DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting interest or
resign with respect to the Securities of that series in the manner and with the
effect provided by, and subject to the provisions of, Section 310(b) of the
Trust Indenture Act and this Indenture.
In the event that the Trustee shall fail to comply with the provisions
of the preceding sentence with respect to the Securities of any series, the
Trustee shall, within 10 days after the expiration of such 90-day period,
transmit, in the manner and to the extent provided in Section 1.6, to all
Holders of Securities of that series notice of such failure.
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.
To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any
particular series of Securities other than that series or any series of
securities issued under any subordinated indenture entered into by the Company.
SECTION 7.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee for each series of Securities
hereunder which shall be either (1) a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal or State
authority or (2) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees; in either case having a
combined capital and surplus of at least $50,000,000. If such corporation or
Person 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
or Person shall be
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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 Person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as trustee for the Securities of any series issued hereunder. 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 7.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(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 7.11 shall not have been delivered to the resigning 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 to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 7.8 after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of a series as to which the Trustee has a
conflicting interest for at least six months; or
(2) the Trustee for a series shall cease to be eligible under
Section 7.9 and shall fail to resign after written request therefor by
the Company or by any Holder of Securities of such series; or
(3) the Trustee shall become incapable of acting; or
(4) the Trustee 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,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
(and, in the case of Clause (1) above, who is a holder of a Security of a series
as to which the Trustee has a conflicting interest) may, on behalf of himself or
herself 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 with respect to such series,
or in the case of Clause (4) above with the respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
of or all such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and such successor Trustee
or Trustees shall comply with the applicable requirements of Section 7.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 7.11, 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 and accepted appointment in the manner required by Section 7.11, any
Holder 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
by giving notice of such event to all Holders of Securities of such series as
provided by Section 1.6. 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 7.11 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 to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver
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an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees cotrustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsection (a) or Subsection (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 7.12 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 hereunder, PROVIDED that
such corporation shall be otherwise qualified and eligible under this
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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 then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to Section 311(a) of the Trust Indenture Act
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.14 JUDGMENT CURRENCY
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that 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 Coupon, it shall become necessary 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 at the
Conversion Rate (as defined below) as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment is
made and there shall occur a change between such Conversion Rate and the
Conversion Rate as in effect on the date of payment or distribution, the Company
agrees, to the fullest extent that it may effectively do so under applicable
law, to pay such additional amounts (if any) as may be necessary to ensure that
the amount paid is the amount in such other currency or currency unit which,
when converted at the Conversion Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such Security or Coupon.
Any amount due from the Company under this Section 7.14 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 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. In no event, however, shall the Company be required
to pay more in the currency or currency unit stated to be due hereunder or under
such Security or Coupon.
For purposes of this Section 7.14, "Conversion Rate" shall mean, as of
any date, for any currency or currency unit into which an amount due hereunder
or under any Security or Coupon is to be converted, the noon buying rate in the
other currency or currency unit for that currency or currency unit for cable
transfers quoted in New York City on such date as certified for customs purposes
by the Federal Reserve Bank of New York. If such rates are not available for any
reason with respect to one or more currencies or currency units for which a
Conversion Rate is required, the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City or in the country of issue of
67
the currency in question, or such other quotations as the Exchange Rate Agent
shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent,
if there is more than one market for dealing in a currency or currency unit by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such currency or currency unit shall be that upon which a nonresident
issuer of securities designated in such currency or currency unit would, as
determined in its sole discretion and without liability on the part of the
Exchange Rate Agent, purchase such currency or currency unit in order to make
payments in respect of such Securities. If there does not exist a quoted
exchange rate in any currency or currency unit (the "First Currency") for
another currency unit (the "Second Currency"), then the Conversion Rate for the
Second Currency shall be equal to equivalent amount in the First Currency
obtained by converting the Specified Amount of each Component Currency of the
Second Currency into the First Currency at the Conversion Rate (determined as
provided above) for each such Component Currency on such date (or, if the First
Currency is a currency unit for which there is no quoted exchange rate in any
Component Currency, by converting the Specified Amount of each Component
Currency of the Second Currency into the Specified Amount of each Component
Currency of the First Currency at the Conversion Rate (determined as provided
above) for each such Component Currency on such date).
SECTION 7.15 APPOINTMENT OF AUTHENTICATING AGENT
The Company 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 original
issue or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 4.5, 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 Trustee and shall at all times be a corporation having a
combined capital and surplus of not less than the equivalent of $50,000,000 and
subject to supervision or examination by Federal, state or District of Columbia
authority or the equivalent foreign authority, in the case of an Authenticating
Agent who is not organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia. 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
68
succeeding to the corporate agency or corporate trust business of such
Authenticating Agent, shall continue to be an Authenticating Agent; PROVIDED
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or 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 Company may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Trustee. 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 Company may appoint a successor Authenticating
Agent which shall be acceptable to the Trustee and shall mail, or cause to be
mailed, written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. 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 Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its
services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to 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 issued
under the within-mentioned Indenture.
__________________________________
as Trustee
By: ________________________________
As Authenticating Agent
By: ________________________________
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other place
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Company shall appoint in accordance with this Section an
Authenticating Agent (which may be an Affiliate of the Company if eligible to be
appointed as an Authenticating Agent hereunder) having an office in such Place
of Payment or other place designated by the Company with respect to such series
of Securities.
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ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
(1) semiannually, not later than 15 days after each Regular
Record Date, a list in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of each series of
Registered Securities as of the preceding Regular Record Date, as the
case may be, and such information concerning the Holders of Bearer
Securities which is known to the Company or any Paying Agent other
than the Company; PROVIDED, HOWEVER, that the Company and such Paying
Agents shall have no obligation to investigate any matter relating to
any Holder of a Bearer Security or a Coupon; and
(2) 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, such list to be dated as of a date
not more than 15 days prior to the time such list is furnished, and
such information concerning the Holders of Bearer Securities which is
known to the Company or any such Paying Agent; PROVIDED, HOWEVER, that
the Company and such Paying Agents shall have no obligation to
investigate any matter relating to any Holder of a Bearer Security or
a Coupon.
Notwithstanding the foregoing Clauses (1) and (2), at such times as the Trustee
is the Security Registrar and Paying Agent with respect to a particular series
of Securities, no such list shall be required to be furnished in respect of such
series
SECTION 8.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 8.1 and the
names and addresses of Holders of each series received by the Trustee in any
capacity as Security Registrar or Paying Agent. The Trustee may destroy any list
furnished to it as provided in Section 8.1 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of
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them shall be held accountable by reason of any disclosure of information as to
the names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 8.3 REPORTS BY TRUSTEE
(a) Within 60 days after May 15 of each year commencing with the May
15 following the Issue Date, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when the Securities are listed on any
stock exchange.
SECTION 8.4 REPORTS BY COMPANY
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it 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 Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time in such rules and
regulations;
(3) transmit by mail to all Holders of Securities, in the manner
and to the extent provided in the Trust Indenture Act with respect to
reports to be transmitted pursuant to the requirements of the Trust
Indenture Act, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to Clause (1) or Clause
(2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
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(4) promptly notify the Trustee when any Securities are listed on
any stock exchange.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 9.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other Person
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, and premium, if any, and interest, if
any, on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) 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; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer 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 in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this instrument or any
successor Person which shall have theretofore become such in the manner
prescribed in Section 9.1) shall be discharged from all liability under this
Indenture and in respect of the Securities and may be dissolved and liquidated.
In the event of any such conveyance or transfer, the Company as the predecessor
Person shall be relieved of all such obligations and may be dissolved, wound-up
or liquidated at any time thereafter.
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon 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).
(3) to add any additional Events of Default with respect to all
or any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable);
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; 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; PROVIDED that any such addition or change
shall not adversely affect the interests of the Holders of Securities
of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any series
as permitted by Sections 2.2 and 3.1;
(7) 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
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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 7.11(b);
(8) if allowed under applicable laws and regulations, to permit
payment in the United States of principal, premium or interest on
Bearer Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities of
one or more series in addition to or in place of certificated
Securities;
(10) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein PROVIDED such other provision as may be made shall
not adversely affect the interests of the Holders of outstanding
Securities of any series in any material respect;
(11) to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED such other provisions
as may be made shall not adversely affect the interests of the Holders
of outstanding Securities of any series in any material respect; or
(12) to secure the Securities of any or all series.
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or the
redemption thereof, 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 6.2, or change any Place of Payment where, or the currency,
currencies or currency unit or units in which, any Security or the
principal, any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or affect adversely the terms, if
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any, of conversion of any Security into shares or other securities of
the Company or of any other corporation,
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture,
(3) change any obligation of the Company, with respect to
Outstanding Securities of a series, to maintain an office or agency in
the places and for the purposes specified in Section 11.2 for such
series, or
(4) modify any of the provisions of this Section or Section
6.13, except to increase any such percentage or to provide with
respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 2.2 or Section 3.1, as the
case may be, without the consent of any Holder) 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 with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Section 7.11(b) and 10.1(7).
For purposes of this Section 10.2, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder of
Outstanding Securities of such series in the amount issuable upon the exercise
of such warrant. For such purposes, the ownership of any such warrant shall be
determined by the Company in a manner consistent with customary commercial
practices. The Trustee for such series shall be entitled to rely on an Officers'
Certificate as to the principal amount of Securities of such series in respect
of which consents shall have been executed by holders of such warrants.
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 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.
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In connection with any supplemental indenture or waiver under this
Article Ten, the Company may, but shall not be obligated to, offer to any Holder
who consents to such supplemental indenture, or to all Holders, consideration
for such Holder's consent to such supplemental indenture.
SECTION 10.3 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
(in addition to the opinion which the Trustee is entitled to receive pursuant to
Section 2.2), and (subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 10.4 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby, unless it makes a change described in any of Clauses (1)
through (4) of Section 10.2, in which case, the supplemental indenture shall
bind only each Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security; PROVIDED that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and on or after such respective dates.
SECTION 10.5 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 10.6 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.
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ARTICLE ELEVEN
COVENANTS
SECTION 11.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company covenants and agrees for the benefit of each series of
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any, on) and interests if any, on the Securities
and Coupons, if any, of that series in accordance with the terms of the
Securities and Coupons, if any, of such series and this Indenture.
SECTION 11.2 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. If
Securities of a series are issuable as both Registered or Bearer Securities or
only as Bearer Securities, the Company will maintain (1) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
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 proviso contained in the last sentence of this
first paragraph of Section 11.2 (and not otherwise), (2) 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 11.5); PROVIDED, HOWEVER, that if the Securities of
that series are listed on any 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 any required city located outside the
United States, so long as the Securities of that series are listed on such
exchange, and (3) 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
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any additional amounts payable on Bearer Securities of that series pursuant to
Section 11.5) at the London office of the Trustee (or an agent with a London
office appointed by the Trustee and acceptable to the Company), and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands. No payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are 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 11.5) shall be made at the office of the Company's
Paying Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may 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; 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.
SECTION 11.3 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 premium, if any, on) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the relevant currency (or a sufficient number
of currency units, as the case may be) sufficient to pay the principal (and
premium, if any, on) 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, at or prior to the opening of business on each
due date of the principal of (and premium, if any, on) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) 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.
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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:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) or interest, if any, 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;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in making of any
payment of principal (and premium, if any, on) or interest, if any, on
the Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such 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 premium, if
any, on) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and Coupons, if any, 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 and at the direction of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains unclaimed and that, after a
date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
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SECTION 11.4 STATEMENT BY OFFICERS AS TO DEFAULT
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year if any Securities are outstanding under this Indenture, a
written certificate signed by the chairman, chief executive officer, the chief
financial officer, the chief accounting officer of the Company or any person
acting in a similar capacity, 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 or her
supervision;
(2) to his or her knowledge, based on such review, the Company
has fulfilled all its obligations, and has complied with all
conditions and covenants, under this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such
obligation, condition or covenant, specifying each such default known
to him or her and the nature and status thereof.
For purposes of this Section 11.4, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 11.5 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 related Coupon additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or
payment of any related Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of additional amounts (if applicable) in any provisions
hereof shall not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's 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 (as defined in such Securities) 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
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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.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.1 APPLICABILITY OF ARTICLE
The Company may reserve the right to redeem and pay before Stated
Maturity all or any part of the Securities of any series, either by optional
redemption, sinking or purchase fund or analogous obligation or otherwise, by
provision therefor in the form of Security for such series established and
approved pursuant to Section 2.2 or Section 3.1, as the case may be, and on such
terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 2.2 or Section 3.1, as the case may be. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.2 or Section 3.1, as the case may be, for Securities of any series) in
accordance with this Article.
SECTION 12.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE
If the Company shall desire to exercise the right to redeem all, or,
as the case may be, any part of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notifying the Trustee of
such Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities (1) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (2) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 12.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED
If less than all the Securities of any series 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 Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption
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shall be equal to the minimum authorized denomination of the Securities of such
series, or an integral multiple thereof, and the principal amount which remains
outstanding shall not be less than the minimum authorized.
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 12.4 NOTICE OF REDEMPTION
Notice of redemption shall be given not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed,
as provided in Section 1.6.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption, that on the Redemption Date
the Redemption Price will become due and payable upon each Security redeemed,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed for
redemption shall be void, that any interest accrued to the Redemption Date will
be paid as specified in said notice, that the redemption is pursuant to the
sinking fund, if such is the case, and that on and after said Redemption Date
any interest thereon or on the portions thereof to be redeemed will cease to
accrue unless the Company shall default in the payment of the Redemption Price
(including any applicable accrued interest). If less than all the Securities of
any series are to be redeemed, the notice of redemption shall specify the
registration and, if any, CUSIP, ISIN or Common Code numbers of the Securities
of such series to be redeemed, and, if only Bearer Securities of any series are
to be redeemed, and if such Bearer Securities may be exchanged for Registered
Securities, the last date on which exchanges of Bearer Securities for Registered
Securities not subject to redemption may be made. In case any Security of any
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof and with appropriate Coupons will
be issued, or, in the case of Registered Securities providing appropriate space
for such notation, at the option of the Holders, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the payment of the redeemed portion thereof.
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.
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SECTION 12.5 DEPOSIT OF REDEMPTION PRICE
On or before 11:00 a.m. on 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 11.3)
an amount of money in the relevant currency (or a sufficient number of currency
units, as the case may be) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 12.6 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 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 shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; PROVIDED, HOWEVER, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
otherwise provided in Section 11.2) and, unless otherwise specified as
contemplated by Section 2.2 or Section 3.1, as the case may be, only upon
presentation and surrender of Coupons for such interest; PROVIDED FURTHER that,
unless otherwise specified as contemplated by Section 2.2 or Section 3.1, as the
case may be, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 4.6.
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 11.2) and, unless otherwise specified as contemplated by Section 2.2 or
Section 3.1, as the case may be, 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.
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SECTION 12.7 SECURITIES REDEEMED IN PART
Any 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 Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities (with appropriate
Coupons) of the same series and Stated Maturity, 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 or, in the case of Registered Securities providing appropriate space
for such notation, at the option of the Holder, the Trustee, in lieu of
delivering a new Security or Securities as aforesaid, may make a notation on
such Security of the Payment of the redeemed portion thereof.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 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 2.2 or Section 3.1, as the case may be, 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 13.2. 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 13.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
The Company (1) may deliver Outstanding Securities (including all
unmatured Coupons appertaining thereto) of a series (other than any previously
called for redemption) and (2) 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 the outstanding principal amount thereof credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption
84
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.3 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 13.2 and will also deliver to the Trustee any Securities
(including all unmatured Coupons appertaining thereto) to be so 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 12.3 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 12.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 12.6
and 12.7.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 14.1 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 14.2 CALL, NOTICE AND PLACE OF MEETINGS
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 14.1, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London, 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 1.6, not less than 20
nor more than 180 days prior to the date fixed for the meeting; PROVIDED,
HOWEVER, that publication shall occur at least twice, with each publication to
be 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, by or pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 14.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 20 days after receipt of
such request or shall not thereafter proceed to
85
cause the meeting to be held as provided herein, then the Company or the Holders
of Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York, or in 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 14.3 PERSONS ENTITLED TO VOTE AT MEETINGS
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 14.4 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. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 14.2(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.
Except as limited by the proviso to Section 10.2, and subject to the
provisions described in the next succeeding paragraph, 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 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 equal to or less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of such series and the related Coupons, whether or not present or
represented at the meeting.
86
With respect to any consent, waiver or other action which this
Indenture expressly provides may be given by the Holders of a specified
percentage of Outstanding Securities of all series affected thereby (acting as
one class), only the principal amount of Outstanding Securities of any series
represented at a meeting or adjourned meeting duly reconvened at which a quorum
is present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
SECTION 14.5 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 regulations,
the holding of Securities shall be proved in the manner specified in Section 1.4
and the appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holder of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.4 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 14.2(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 the equivalent thereof)
principal amount of the Outstanding Securities of such series held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 14.2 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.
87
SECTION 14.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 14.2 and, if
applicable, Section 14.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
SUBORDINATION
SECTION 15.1 AGREEMENT TO SUBORDINATE
The Company agrees, and each Holder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article Fifteen, to
the prior payment of all Senior Indebtedness, and that such subordination is for
the benefit of and enforceable by the holders of Senior Indebtedness. Only
indebtedness of the Company which is Senior Indebtedness shall rank senior to
the Securities in accordance with the provisions set forth herein. All
provisions of this Article Fifteen shall be subject to Section 15.12.
SECTION 15.2 LIQUIDATION, DISSOLUTION, BANKRUPTCY
Upon any payment or distribution of the assets of the Company to
creditors upon a total or partial liquidation or a total or partial dissolution
of the Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its respective properties:
(1) holders off Senior Indebtedness shall be entitled to receive
payment in full of the Senior Indebtedness before the Holders of
Securities shall be entitled to receive any payment of principal of or
interest on other amounts with respect to the Securities; and
88
(2) until the Senior Indebtedness is paid in full, any distribution to which
the Holders of Securities would be entitled but for this Article Fifteen
shall be made to holders of Senior Indebtedness as their interests may
appear,
except, in the case of Clauses (1) and (2), that Holders of Securities
may receive shares of share capital and any debt securities that are
subordinated to Senior Indebtedness to at least the same extent as the
Securities and do not provide for the payment of principal prior to the Stated
Maturity of all Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Nine hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Article if the Person formed by such consolidation or the surviving entity of
such merger of the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article Nine.
SECTION 15.3 DEFAULT ON SENIOR INDEBTEDNESS
The Company may not pay the principal of or interest on or other
amounts with respect to the Securities, make any deposit pursuant to Section
11.3 or repurchase, redeem or otherwise retire any Securities (collectively,
"pay the Securities") if (1) any Senior Indebtedness is not paid when due or (2)
any other default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(i) the default has been cured or waived and any such acceleration has been
rescinded or (ii) such Senior Indebtedness has been paid in full; provided,
however, that the Company may pay the Securities without regard to the foregoing
if the Company and the Trustee receive written notice approving such payment
from the Representatives of the Senior Indebtedness with respect to which either
of the events set forth in Clause (1) or (2) of the immediately preceding
sentence has occurred or is continuing. During the continuance of any default
with respect to any Designated Senior Indebtedness, pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect such acceleration) or the expiration of
any applicable grace periods, the Company may not pay the Securities for a
period (a "Payment Blockage Period") commencing upon the receipt by the Trustee
(with a copy to the Company) of written notice (a "Blockage Notice") of such
default from the Representative of such Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period and ending 90 days
thereafter (or earlier if such Payment Blockage Period is terminated (1) by
written notice to the Trustee and the Company from the Person or Persons who
gave such Blockage Notice, (2) by repayment in full of such Designated Senior
Indebtedness, or (3) because the default giving rise to such Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have
89
accelerated the maturity of such Designated Senior Indebtedness, the Company may
resume payments on the Securities after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period. No
Event of Default which existed or was continuing on the date of the commencement
of any Blockage Period with respect to the Designated Senior Indebtedness shall
be, or be made, the basis for commencement of a second Blockage Period by the
Representative of such Designated Senior Indebtedness whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
SECTION 15.4 ACCELERATION OF PAYMENT OF SECURITIES
If payment of the Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
Senior Indebtedness (or their Representatives) of the acceleration. If any
Senior Indebtedness is outstanding, the Company may not pay the Securities until
five Business Days after Representatives of the Senior Indebtedness receive
notice of such acceleration and, thereafter, may pay the Securities only if this
Article Fifteen otherwise permits payments at that time.
SECTION 15.5 WHEN DISTRIBUTIONS MUST BE PAID OVER
If a distribution is made to the Holders of Securities that because of
this Article Fifteen should not have been made to them, the Holders of
Securities who receive the distribution shall hold it in trust for holders of
Senior Indebtedness and pay it over to them as their interests may appear.
SECTION 15.6 SUBROGATION
After all Senior Indebtedness is paid in full and until the Securities
are paid in full, Holders of Securities shall be subrogated to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness. A distribution made under this Article Fifteen to holders of
Senior Indebtedness which otherwise would have been made to Holders of
Securities is not, as between the Company and Holders of Securities, a payment
by the Company on Senior Indebtedness.
SECTION 15.7 RELATIVE RIGHTS
This Article Fifteen defines the relative rights of Holders of
Securities and holders of Senior Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Securities, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms; or
90
(2) prevent the Trustee or any Holder of Securities from exercising its
available remedies upon an Event of Default, subject to the rights of
holders of Senior Indebtedness to receive distributions otherwise payable
to Holders of Securities.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Fifteen shall have
been applied, pursuant to the provisions of this Article Fifteen, to the payment
of all amounts payable under the Senior Indebtedness of the Company, then and in
such case the Holders shall be entitled to receive from the holders of such
Senior Indebtedness at the time outstanding any payments or distributions
received by such holders of such Senior Indebtedness in excess of the amount
sufficient to pay all amounts payable under or in respect of such Senior
Indebtedness in full in cash or cash equivalents.
SECTION 15.8 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by the failure of the Company to
comply with this Indenture.
SECTION 15.9 RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding Section 15.3, the Trustee or Paying Agent may continue
to make payments on the Securities and shall not be charged with knowledge of
the existence of facts that would prohibit the making of any such payments
unless, not less than two Business Days prior to the date of such payment, a
trust officer of the Trustee receives notice satisfactory to it that payments
may not be made under this Article Fifteen. The Company, the Registrar or co-
registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness
may give the notice; PROVIDED, HOWEVER, that, if an issuer of Senior
Indebtedness has a Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article Fifteen with respect to any Senior Indebtedness, which may at any time
be held by it, to the same extent as any other holder of Senior Indebtedness;
and nothing in Article Seven shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Article Seven.
SECTION 15.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representatives (if any).
91
SECTION 15.11 ARTICLE FIFTEEN NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT RIGHT
TO ACCELERATE
The failure to make a payment pursuant to the Securities by reason of
any provision in this Article Fifteen shall not be construed as preventing the
occurrence of an Event of Default. Nothing in this Article Fifteen shall have
any effect on the right of the Holders of Securities or the Trustee to
accelerate the maturity of the Securities.
SECTION 15.12 TRUST MONEYS NOT SUBORDINATED
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of U.S. government obligations held in trust under
Section 11.3 by the Trustee for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness, or subject to the restrictions set forth in this Article Fifteen,
and none of the Holders of Securities shall be obligated to pay over any such
amount to the Company, or any holder of Senior Indebtedness of the Company or
any other creditor of the Company.
SECTION 15.13 TRUSTEE ENTITLED TO RELY UPON ANY PAYMENT OR DISTRIBUTION
Pursuant to this Article Fifteen, the Trustee and the Holders of
Securities shall be entitled to rely (1) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 15.2 are pending, (2) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Holders of Securities or (3) upon the Representatives for the holders of
Senior Indebtedness for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness, and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen. In the event that the
Trustee determines, in good faith, that evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Fifteen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and other facts pertinent to the rights of such Person under this Article
Fifteen, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 15.14 TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of Securities by accepting a Security authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination between the Holders
of Securities and the holders of Senior Indebtedness as provided in this Article
Fifteen and appoints the Trustee as attorney-in-fact for any and all such
purposes.
92
SECTION 15.15 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Securities, the Company,
or any other Person, money or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article Fifteen or otherwise.
SECTION 15.16 RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS
Each Holder of Securities by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness.
93
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.
APEX SILVER MINES LIMITED
By
[SEAL] ---------------------------
Attest:
----------------------------
------------------------------
as Trustee,
By
[SEAL] ---------------------------
Attest:
----------------------------
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the day of , , before me personally came
----- --------- -----
, to me known, who, being by me duly sworn, did depose and say
------------------
that he is a of APEX SILVER MINES LIMITED, one of the
------------------
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
------------------------------------
Notary Public
Notary Public, State of New York
No.
---------
Qualified in
---------
Commission Expires
---------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , , before me personally came
---- --------- ----
, to me known, who, being by me duly sworn, did depose and say
------------------
that he is a of , one of the corporations
------------------------- ---------
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
-----------------------------------
Notary Public
Notary Public, State of New York
No.
---------
Qualified in
---------
Commission Expires
---------
95
EXHIBIT A
[RESERVED]
A-1
EXHIBIT B
[FORMS OF CERTIFICATION]
B-1
EXHIBIT B.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States, or,
if a beneficial interest in the Securities is being acquired by a United States
person, that such United States person is a financial institution as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is
acquiring through a financial institution, and that the Securities were held by
a financial institution that has agreed to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder and that it is not purchasing for offer
to resell or for resale inside the United States.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all such Securities.
B-1-1
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ,
------------- ----
[To be dated on or after
, the date
------------- ----
determined as provided in the
Indenture]
[Name of Person Entitled to Receive
Bearer Security]
-----------------------------------
(Authorized Signatory)
Name:
Title:
X-0-0
XXXXXXX X.0
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL
IN CONNECTION WITH THE EXCHANGE OF A
PORTION OF A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify with respect to $ principal amount of the
---------
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Date: ,
------------- ----
[To be dated no earlier than
The Exchange Date]
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL]
By
------------------------------------
X-0-0
XXXXXXX X.0
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR AND CEDEL
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Date: ,
---------------- -----
[To be dated on or after the
relevant Interest Payment Date]
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear System]
[CEDEL]
By
-----------------------------------
X-0-0
XXXXXXX X.0
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
APEX SILVER MINES LIMITED
[INSERT TITLE OR SUFFICIENT
DESCRIPTION OF SECURITIES]
This is to certify that as of the Interest Payment Date on [Insert
Date] and except as provided in the third paragraph hereof, the above-captioned
Securities held by you for our account are not beneficially owned by a United
States person, and have not been acquired by or on behalf of a United States
person, or for offer to resell or for resale to a United States person or any
person inside the United States, or, if any of such Securities held by you for
our account are beneficially owned by a United States person, (i) such United
States person is a financial institution within the meaning of Section 1.165-
12(c)(1)(v) of the United States Treasury Regulations purchasing for its own
account or has acquired such Securities through a financial institution and (ii)
such Securities are held by a financial institution that has agreed to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder and that it did
not purchase for offer to resell or for resale inside the United States.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S. $
--------------
principal amount of the above-captioned Securities appearing in your books as
being held for our account as to which we are not yet able to certify and as to
which we understand interest cannot be credited unless and until we are able to
so certify.
B-4-1
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Date: ,
------------- ----
[To be dated on or after
the 15th day before the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
-------------------------------------
(Authorized Signature)
Name:
Title:
X-0-0
XXXXXXX X.0
[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]
By your purchase of the securities referred to in the accompanying
confirmation (the "Securities"):
You represent that you are not a United States person or, if you are a
United States person, you are a financial institution as that term is defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are
acquiring through a financial institution, and that the Securities will be held
by a financial institution that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder and are not purchasing the
Securities on behalf of any United States person other than such a financial
institution or for offer to resell or for resale inside the United States.
If you are a dealer, (a) you also represent that you have not offered,
sold or delivered, and agree that you will not offer, sell, resell or deliver,
any of such Securities, directly or indirectly, in the United States or to any
United States person other than such a financial institution and (b) you agree
that you will deliver to all purchasers of such Securities from you a written
statement in this form.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is subject to United
States Federal income taxation regardless of its source.
B-5-1
