EXHIBIT 4
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AMERITECH CAPITAL FUNDING CORPORATION,
ISSUER
AMERITECH CORPORATION,
GUARANTOR
AND
XXXXXX TRUST AND SAVINGS BANK,
TRUSTEE
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INDENTURE
DATED AS OF OCTOBER 1, 1997
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CROSS REFERENCE SHEET*
BETWEEN
Provisions of Sections 310 through 318(a) inclusive of the
Trust Indenture Act of 1939 and the Indenture dated as of
October 1, 1997 among Ameritech Capital Funding Corporation,
Ameritech Corporation and Xxxxxx Trust and Savings Bank, as
Trustee.
SECTION OF
SECTION OF ACT INDENTURE
310(a)(1)........................................ 609
310(a)(2)........................................ 609
310(a)(3)........................................ **
310(a)(4)........................................ **
310(a)(5)........................................ 609
310(b)........................................... 608 and 610
310(c)........................................... **
311(a)........................................... 613(a)
311(b)........................................... 613(b)
311(b)(2)........................................ 703(a)(iii) and 703(b)
311(c)........................................... **
312(a)........................................... 701 and 702(a)
312(b)........................................... 702(b)
312(c)........................................... 702(c)
313(a)........................................... 703(a)
313(b)........................................... 703(b)
313(c)........................................... 703(c)
313(d)........................................... 703(d)
314(a)........................................... 704
314(b)........................................... **
314(c)(1)........................................ 102
314(c)(2)........................................ 102
314(c)(3)........................................ **
314(d)........................................... **
314(e)........................................... 102
315(a)........................................... 601(a)
315(b)........................................... 602
315(c)........................................... 601(b)
315(d)(1)........................................ 601(a)(i) and 601(a)(ii)
315(d)(2)........................................ 601(c)(ii)
315(d)(3)........................................ 601(c)(iii)
315(e)........................................... 514
316(a)(1)(A)..................................... 502 and 512
316(a)(1)(B)..................................... 513
316(a)(2)........................................ **
316(b)........................................... 508
316(c)........................................... 516
317(a)(1)........................................ 503
317(a)(2)........................................ 504
317(b)........................................... 1003
318(a)........................................... 108
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*This cross reference sheet shall not, for any purpose, be
deemed to be a part of the Indenture.
**Not applicable.
TABLE OF CONTENTS*
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ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions................................................. 1
Act......................................................... 1
Affiliate................................................... 1
Authenticating Agent........................................ 1
Authorized Newspaper........................................ 1
Bearer Security............................................. 2
Business Day................................................ 2
Capital Stock............................................... 2
CEDEL S.A................................................... 2
Commission.................................................. 2
Common Depository........................................... 2
Company..................................................... 2
Company Request or Company Order............................ 2
Corporate Trust Office...................................... 2
corporation................................................. 2
coupon...................................................... 2
Defaulted Interest.......................................... 2
Dollar...................................................... 2
Euro-clear.................................................. 2
Event of Default............................................ 2
Exchange Date............................................... 2
Guarantee................................................... 2
Guarantor................................................... 3
Holder...................................................... 3
Indenture................................................... 3
interest.................................................... 3
Interest Payment Date....................................... 3
Maturity.................................................... 3
Mortgage.................................................... 3
Officers' Certificate....................................... 3
Opinion of Counsel.......................................... 3
Original Issue Discount Security............................ 3
Outstanding................................................. 3
Paying Agent................................................ 4
Person...................................................... 4
Place of Payment............................................ 4
Predecessor Security........................................ 4
Redemption Date............................................. 4
Redemption Price............................................ 4
Registered Security......................................... 4
Regular Record Date......................................... 4
Resolution.................................................. 4
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*This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture
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Responsible Officer........................................ 5
Securities................................................. 5
Security Register and Security Registrar................... 5
Special Record Date........................................ 5
Stated Maturity Date....................................... 5
Subsidiary................................................. 5
Trustee.................................................... 5
Trust Indenture Act........................................ 0
Xxxxxx Xxxxxx.............................................. 0
Xxxxxx Xxxxxx Alien........................................ 5
U.S. Depository............................................ 5
U.S. Government Obligations................................ 5
Vice President............................................. 6
Voting Stock............................................... 6
Section 102. Compliance Certificates and Opinions....................... 6
Section 103. Form of Documents Delivered to Trustee..................... 6
Section 104. Acts of Holders............................................ 7
Section 105. Notices, Etc., to Trustee, Company and Guarantor........... 8
Section 106. Notice to Holders of Securities; Waiver.................... 8
Section 107. Language of Notices, Etc................................... 9
Section 108. Conflict with Trust Indenture Act.......................... 9
Section 109. Effect of Headings and Table of Contents................... 9
Section 110. Successors and Assigns..................................... 9
Section 111. Separability Clause........................................ 9
Section 112. Benefits of Indenture...................................... 9
Section 113. Exemption from Individual Liability........................ 10
Section 114. Governing Law.............................................. 10
Section 115. Legal Holidays............................................. 10
ARTICLE TWO
Security Forms
Section 201. Forms Generally............................................ 10
Section 202. Form of Trustee's Certificate of Authentication............ 11
Section 203. Securities in Global Form.................................. 11
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series....................... 12
Section 302. Denominations.............................................. 14
Section 303. Execution, Authentication, Delivery and Dating............. 14
Section 304. Temporary Securities....................................... 15
Section 305. Registration, Registration of Transfer and Exchange........ 17
Mutilated, Destroyed, Lost and Stolen Securities and
Section 306. Coupons.................................................... 19
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Section 307. Payment of Interest; Interest Rights Preserved............. 20
Section 308. Persons Deemed Owners...................................... 21
Section 309. Cancellation............................................... 21
Section 310. Computation of Interest.................................... 21
Section 311. Unconditional Guarantee.................................... 21
Section 312. Execution of Guarantees.................................... 23
Section 313. Assumption by Guarantor.................................... 23
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.................... 23
Section 402. Application of Trust Money................................. 24
Section 403. Satisfaction, Discharge and Defeasance of Securities of any
Series.................................................... 24
Section 404. Reinstatement.............................................. 26
ARTICLE FIVE
Remedies
Section 501. Events of Default.......................................... 26
Section 502. Acceleration of Maturity; Rescission and Annulment......... 27
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................... 28
Section 504. Trustee May File Proofs of Claim........................... 28
Section 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons................................................ 29
Section 506. Application of Money Collected............................. 29
Section 507. Limitations on Suits....................................... 29
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...................................... 30
Section 509. Restoration of Rights and Remedies......................... 30
Section 510. Rights and Remedies Cumulative............................. 30
Section 511. Delay or Omission Not Waiver............................... 30
Section 512. Control by Holders of Securities........................... 30
Section 513. Waiver of Past Defaults.................................... 31
Section 514. Undertaking for Costs...................................... 31
Section 515. Waiver of Stay or Extension Laws........................... 31
Section 516. Record Date................................................ 31
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities........................ 32
Section 602. Notice of Defaults......................................... 32
Section 603. Certain Rights of Trustee.................................. 33
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Section 604. Not Responsible for Recitals or Issuance of Securities.... 33
Section 605. May Hold Securities....................................... 34
Section 606. Money Held in Trust....................................... 34
Section 607. Compensation and Reimbursement............................ 34
Section 608. Disqualification; Conflicting Interests................... 34
Section 609. Corporate Trustee Required; Eligibility................... 38
Section 610. Resignation and Removal; Appointment of Successor......... 39
Section 611. Acceptance of Appointment by Successor.................... 40
Section 612. Merger, Conversion, Consolidation or Succession to
Business................................................. 41
Section 613. Preferential Collection of Claims Against Company and
Guarantor................................................ 41
Section 614. Appointment of Authenticating Agent....................... 43
ARTICLE SEVEN
Holders' Lists and Reports by Trustee, Company and Guarantor
Section 701. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders..................................... 45
Section 702. Preservation of Information; Communications to Holders.... 45
Section 703. Reports by Trustee........................................ 46
Section 704. Reports by Company and Guarantor.......................... 47
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company and Guarantor May Consolidate, Etc., Only on
Certain Terms............................................ 48
Section 802. Successor Substituted..................................... 48
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders........ 48
Section 902. Supplemental Indentures With Consent of Holders........... 49
Section 903. Execution of Supplemental Indentures...................... 50
Section 904. Effect of Supplemental Indentures......................... 50
Section 905. Conformity with Trust Indenture Act....................... 50
Section 906. Reference in Securities to Supplemental Indentures........ 50
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest................ 51
Section 1002. Maintenance of Office or Agency........................... 51
Section 1003. Money for Securities Payments to Be Held in Trust......... 52
Section 1004. Additional Amounts........................................ 53
Section 1005. Purchase of Securities by Company or Subsidiary........... 53
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Section 1006. Lien on Assets............................................ 54
Section 1007. Waiver of Certain Covenants............................... 54
Section 1008. Defeasance of Certain Obligations......................... 54
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.................................. 55
Section 1102. Election to Redeem; Notice to Trustee..................... 55
Section 1103. Selection by Trustee of Securities to Be Redeemed......... 56
Section 1104. Notice of Redemption...................................... 56
Section 1105. Deposit of Redemption Price............................... 56
Section 1106. Securities Payable on Redemption Date..................... 56
Section 1107. Securities Redeemed in Part............................... 57
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................................. 57
Section 1202. Satisfaction of Sinking Fund Payments with Securities..... 58
Section 1203. Redemption of Securities for Sinking Fund................. 58
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called................. 58
Section 1302. Call, Notice and Place of Meetings........................ 58
Section 1303. Persons Entitled to Vote at Meetings...................... 59
Section 1304. Quorum; Action............................................ 59
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings................................................. 60
Section 1306. Counting Votes and Recording Action of Meetings........... 60
Signatures............................................................... 61
Acknowledgements......................................................... 61
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INDENTURE, dated as of October 1, 1997, among Ameritech Capital Funding
Corporation (the "Company"), Ameritech Corporation (the "Guarantor"), each a
corporation duly organized and existing under the laws of the State of
Delaware and having its principal office at 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, and Xxxxxx Trust and Savings Bank, an Illinois banking
corporation, as Trustee (the "Trustee").
Whereas, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as provided herein; and
Whereas, the Guarantor has duly authorized the execution and delivery of
this Indenture and the Guarantees (as defined herein) and deems it appropriate
from time to time to issue its Guarantees of the Securities on the terms
herein provided;
Now, Therefore, This Indenture Witnesseth that, for and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is
mutually 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 101. 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 in the United States of America 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; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision hereof.
Certain terms, used principally in Article Six, are defined in that Article.
"Act", when used with respect to any Holder of a Security, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in connection
with which the term is used or in the financial community of such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to the bearer thereof.
"Business Day" when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions and trust companies in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
"Capital Stock" means, as to shares of a corporation, outstanding shares of
stock of any class whether now or hereafter authorized, irrespective of
whether such class shall be limited to a fixed sum or percentage in respect of
the rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding
up of such corporation.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Depository" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee (or any
successor trustee) at which at any particular time its corporate trust
business shall be administered or such other address as the Trustee (or any
successor Trustee) may designate from time to time by notice to the Holders
and the Company.
"corporation" means a corporation, association, company, joint-stock company
or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Guarantee" means the agreement of the Guarantor in the form set forth in
Section 311, to be endorsed on the Securities authenticated and delivered
hereunder.
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"Guarantor" means the Person named as the Guarantor 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 "Guarantor" shall
mean such successor Person.
"Holder", when used with respect to any Security, means in the case of a
Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security (or any temporary
global Security) the bearer thereof and, when used with respect to any coupon,
means the bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of particular series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity Date of an installment of interest on such Security.
"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 Date or
by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, or by the Chairman, a Vice Chairman,
the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Guarantor, as the
case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company or the Guarantor, as the case may be, or other counsel
who shall be acceptable to the Company or the Guarantor and the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 .
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons thereto appertaining; provided,
that if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
3
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (x) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, (y) the
principal amount of a Security denominated in a foreign currency or currencies
shall be the U.S. dollar equivalent, determined as of the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (x)
above) of such Security and (z) Securities owned by the Company, the Guarantor
or any other obligor upon the Securities or any Affiliate of the Company, the
Guarantor or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, or upon any such determination as to the presence
of a quorum, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or any interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 1002,
the principal of (and premium, if any) and any interest on the Securities of
that series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which
a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form set forth in either
Exhibit A or Exhibit B to this Indenture or established pursuant to Section
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Resolution" means a resolution of the sole shareholder (or, if one exists,
the board of directors) of the Company or the board of directors of the
Guarantor, certified by such Person's Secretary or an Assistant Secretary to
have been duly adopted by its sole shareholder (or, if one exists, its board
of directors) or board of directors, respectively, and to be in full force and
effect on the date of such certification and delivered to the Trustee.
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"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust
matters.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity Date", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other 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 in force at
the date as of which this instrument was executed, except as provided in
Section 905.
"United States" means the United States of America (including the States and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as U.S. Depository by the Company
pursuant to Section 301, which must be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, until a successor U.S. Depository
shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "U.S. Depository" shall mean or include each Person
who is then a U.S. Depository hereunder, and if at any time there is more than
one such Person, "U.S. Depository" shall mean the U.S. Depository with respect
to the Securities of that series.
"U.S. Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations
of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any such U.S. Government Obligations or a
specific payment of or interest on any such U.S. Government Obligations held
by such custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is not
5
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligations or the specific payment of principal of or
interest on the U.S. Government Obligations evidenced by such depository
receipt.
"Vice President", when used with respect to the Company, the Guarantor 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".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the
Guarantor, as appropriate, shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such 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
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion 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 or the Guarantor may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate, opinion or
representations with respect to the matters upon which his certificate or
opinion is based is or are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company or the Guarantor stating that the information with respect to such
factual
6
matters is in the possession of the Company or the Guarantor, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate, opinion or representations with respect to such matters is or are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
any series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in accordance with the
provisions of Article Thirteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company or the Guarantor. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
and so voting at any such meeting. Proof of execution of any such instrument
or of a writing appointing any such agent, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee, the Company and the
Guarantor, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1306 .
Without limiting the generality of this Section 104, unless otherwise
established in or pursuant to a Resolution, set forth or determined in an
Officers' Certificate or established in one or more indentures supplemental
hereto, a Holder, including a U.S. Depository that is a Holder of a permanent
global Security, may make, give or take, by a proxy or proxies duly appointed
in writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or taken
by Holders, and a U.S. Depository that is a Holder of a permanent global
Security may provide its proxy or proxies to the beneficial owners of
interests in any such permanent global Security through such U.S. Depository's
standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interests in any permanent global
Security held by a U.S. Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or taken
by Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other action shall be valid or effective
if made, given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held by
any Person, and the date of holding the same, shall be proved by the Security
Register.
7
(d) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee, the Company and the Guarantor may assume that such
ownership of any Bearer Security continues until (i) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security
is produced, (ii) such Bearer Security is produced to the Trustee by some
other Person, (iii) such Bearer Security is surrendered in exchange for a
Registered Security or (iv) such Bearer Security is no longer Outstanding. The
principal amounts and serial numbers of Bearer Securities held by any Person,
and the date of holding the same, may also be proved in any other manner which
the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
Section 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company or the Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Indenture Trust Division,
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, to the attention of its Secretary, or at any
other address previously furnished in writing to the Trustee by the
Company, or
(c) the Guarantor by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Guarantor addressed
to it at the address of its principal office specified in the first
paragraph of this instrument, to the attention of its Secretary, or at any
other address previously furnished in writing to the Trustee by the
Guarantor.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or as otherwise specified as
contemplated by Section 301, where this Indenture provides for notice to
Holders of Securities of any event,
(a) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such Securities on
a Business Day at least twice, the first such publication to be not earlier
than the earliest date, and not later than the latest date, prescribed for
the giving of such notice.
8
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders
of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
Section 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with duties imposed
by the Trust Indenture Act, such imposed duties shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Guarantor shall bind each such Person's successors and assigns, whether so
expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder and the Holders of Securities and coupons, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
9
Section 113. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or the Guarantor
or of any successor corporation of either, either directly or through the
Company or the Guarantor, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely the corporate obligations of the Company and the
Guarantor, respectively, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company or the Guarantor or any
successor corporation of either, or any of them, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the
Securities or implied therefrom; and that any and all such personal liability,
either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such incorporator, stockholder,
officer or director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
Section 114. Governing Law.
This Indenture and the Securities, the Guarantees and the coupons shall be
governed by and construed in accordance with the internal laws (as opposed to
conflicts of laws provisions) of the State of Illinois.
Section 115. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity Date of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity Date, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity Date, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer Securities,
if any, of each series and related coupons shall be in substantially the forms
set forth in Exhibits A or B to this Indenture, or in such other form
(including permanent global form) as shall be established by or pursuant to a
Resolution of the Company or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If temporary Securities of any series are issued
in global form as permitted by Section 304, the form thereof shall be
established as provided in the preceding sentence. If the forms of Securities
or coupons of any series (or any
10
such temporary global Security) are established by action taken pursuant to a
Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities in
bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred to
in the within-mentioned Indenture.
Xxxxxx Trust and Savings Bank,
as Trustee
By ___________________________________
Authorized Officer
Section 203. Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (k) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304; provided, that such endorsement shall be made by the Common
Depository with respect to temporary global securities in bearer form. Subject
to the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 303
or 304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
11
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Guarantor, the Trustee and any agent of
the Company, the Guarantor and the Trustee shall treat a person as the Holder
of such principal amount of Outstanding Securities represented by a permanent
global Security as shall be specified in a written statement of the Holder of
such permanent global Security or, in the case of a permanent global Security
in bearer form, of Euro-clear or CEDEL S.A. and produced to the Trustee by
such Person.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Resolution of the Company and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate of the Company (which shall comply with Section 102 ), or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, (i) whether beneficial owners of interests
in any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and (ii) the
name of the Common Depository or the U.S. Depository, as the case may be,
with respect to any global Security;
(d) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(e) the date or dates on which the principal of the Securities of the
series is payable and whether such date or dates may be extended at the
option of the Company;
(f) the rate or rates (or formula for determining such rate or rates) at
which the Securities of the series shall bear interest, if any, the date or
dates from which any such interest shall accrue, the Interest Payment
12
Dates on which any such interest shall be payable, and the Regular Record
Date for any interest payable on any Registered Securities on any Interest
Payment Date;
(g) whether the interest rate or interest rate formula, as the case may
be, for Securities of the series may be reset at the option of the Company
and, if so, the date or dates on which such interest rate or interest rate
formula, as the case may be, may be reset;
(h) the place or places where, subject to the provisions of Section 1002,
the principal of and any premium and interest on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may be
surrendered for exchange and notices and demands to or upon the Company or
the Guarantor in respect of the Securities of the series and this Indenture
may be served;
(i) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company or repaid at
the option of the Holders;
(j) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof 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, pursuant to such obligation;
(k) the denominations in which any Registered Securities of the series
shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Bearer
Securities of the series shall be issuable, if other than the denomination
of $5,000;
(1) the currency or currencies, including composite currencies, in which
payment of the principal of and any premium and interest on the Securities
of the series shall be payable if other than the currency of the United
States;
(m) if the amount of payments of principal of and any premium or interest
on the Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(n) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(o) any additional Events of Default or restrictive covenants with
respect to Securities of such series which are not set forth herein;
(p) the application, if any, of Section 403 to the Securities of the
series;
(q) the application, if any, of Section 1008 to the Securities of the
series; and
(r) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to the Resolution referred to above and (subject to
Section 303) set forth in the Officers' Certificate referred to above or in
any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
13
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, any Registered Securities of a series shall be issuable
in denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any one of the
President, a Vice President, the Treasurer or an Assistant Treasurer of the
Company and the Guarantees endorsed thereon shall be executed on behalf of the
Guarantor by any one of the Chairman, a Vice Chairman, the President, a Vice
President, the Treasurer or an Assistant Treasurer of the Guarantor, under its
corporate seal reproduced thereon. The signature of any of these officers on
the Securities or Guarantees may be manual or facsimile. Coupons shall bear
the facsimile signature of any such officer of the Company.
Securities, coupons and Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company or the Guarantor, as the case may be, shall bind the Company and the
Guarantor, as the case may be, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities and Guarantees or did not hold such offices at the date of
such Securities and Guarantees.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series with duly executed
Guarantees endorsed thereon, together with any coupons appertaining thereto,
executed by the Company, to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate in
the form set forth in Exhibit C.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. If any Security shall be represented by
a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 304 or 306, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Resolutions of the
Company as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion
of Counsel stating:
(a) if the forms of such Securities and any coupons have been established
by or pursuant to a Resolution of the Company as permitted by Section 201,
that such forms have been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities and any coupons have been established
by or pursuant to a Resolution of the Company as permitted by Section 301,
that such terms have been established in conformity with the provisions of
this Indenture;
(c) that such Securities with Guarantees endorsed thereon, together with
any coupons appertaining thereto, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding
14
obligations of the Company and the Guarantor, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles; and
(d) such other matters as the Trustee may reasonably request.
If such forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and
each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date of original issuance of the first Security of such series
to be issued.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, 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 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities with duly executed Guarantees endorsed thereon
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 and Guarantees may
determine, as evidenced by their execution of such Securities and Guarantees.
In the case of any series issuable as Bearer Securities, such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto) the Company
15
and the Guarantor shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like aggregate principal amount of definitive
Securities of the same series and of like tenor of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section
303.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified
in, or determined pursuant to the terms of, any such temporary global Security
(the "Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of
such temporary global Security, or, if so specified as contemplated by Section
301, a permanent global Security, in either case, executed by the Company with
a duly executed Guarantee endorsed thereon. On or after the Exchange Date such
temporary global Security shall be surrendered by the Common Depositary to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged with a duly
executed Guarantee endorsed thereon. The definitive Securities to be delivered
in exchange for any such temporary global Security shall be in definitive
bearer form, definitive registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depository, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euro-
clear as to the portion of such temporary global Security held for its account
then to be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL S.A. as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit C.2 to this Indenture; and provided, further, that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euro-clear
or CEDEL S.A., as the case may be, to request such exchange on his behalf and
delivers to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit C.1 to this Indenture, dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be available
from the offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series
16
occurring prior to the applicable Exchange Date shall be payable to Euro-clear
and CEDEL S.A. on such Interest Payment Date upon delivery by Euro-clear and
CEDEL S.A. to the Trustee of a certificate or certificates in the form set
forth in Exhibit C.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 on such
Interest Payment Date and who have each delivered to Euro-clear or CEDEL S.A.,
as the case may be, a certificate in the form set forth in Exhibit C.4 to this
Indenture. Any interest so received by Euro-clear and CEDEL S.A. and not paid
as herein provided shall be returned to the Trustee immediately prior to the
expiration of two years after such Interest Payment Date in order to be repaid
to the Company in accordance with Section 1003.
Section 305. Registration, Registration of Transfer and Exchange.
With respect to the Securities of each series, the Company shall cause to be
kept at an office or agency to be maintained by the Company in accordance with
Section 1002 a register (being the combined register of the Security Registrar
and all transfer agents designated pursuant to Section 1002 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 "Security Registrar" for the
purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver (with
duly executed Guarantees endorsed thereon), 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 deliver (with duly executed
Guarantees endorsed thereon), the Securities which the Holder making the
exchange is entitled to receive. Except as otherwise specified as contemplated
by Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, 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, the Guarantor and the Trustee if there
is furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (a) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (b) any Special Record Date
and before the opening of business at such office
17
or agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver (with duly executed
Guarantees endorsed thereon), the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated
by Section 301, any permanent global Security shall be exchangeable only as
provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities of that series (with duly executed
Guarantees endorsed thereon) in aggregate principal amount equal to the
principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged,
such permanent global Securities shall be surrendered from time to time by the
Common Depository or the U.S. Depository, as the case may be, and in
accordance with instructions given to the Trustee and the Common Depository or
the U.S. Depository, as the case may be (which instructions shall be in
writing but need not comply with Section 102 or be accompanied by an Opinion
of Counsel), as shall be specified in the Company Order with respect thereto
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or in part, for definitive Securities of the same series without charge.
The Trustee shall authenticate and make available for delivery, in exchange
for each portion of such surrendered permanent global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which (unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the permanent global Security
shall be issuable only in the form in which the Securities are issuable, as
specified as contemplated by Section 301) shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of that series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Common Depository or the U.S.
Depository, as the case may be, or such other depositary or Common Depository
or U.S. Depository referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (a) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (b) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, such interest or
Defaulted Interest will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
All Securities (with Guarantees endorsed thereon) issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Guarantor, evidencing the same debt and
entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
18
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Guarantor
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, the
Guarantor 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 and the Guarantor may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (i) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (ii) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (b) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(c) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that
series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver (with the Guarantee thereon executed by the
Guarantor) 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.
If there shall be delivered to the Company, the Guarantor and the Trustee
(a) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (b) such security or indemnity as may be required by
them to save each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver (with the Guarantee thereon executed by
the Guarantor), in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that the principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company and
the Guarantor may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
19
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon
appertains, and every new Guarantee delivered in connection therewith, shall
constitute an original additional contractual obligation of the Company and
the Guarantor, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Security, Guarantee and coupons, if
any, shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, and Guarantees duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) any other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
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 or the
Guarantor, at its election in each case, as provided in clause (a) or (b)
below:
(a) The Company or the Guarantor 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 or the Guarantor, as appropriate, shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed payment,
and at the same time the Company or the Guarantor 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 or the
Guarantor of such Special Record Date and, in the name and at the expense
of the Company or the Guarantor, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at the address of such Holder as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).
(b) The Company or the Guarantor 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 or the
Guarantor, as appropriate, to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
20
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Except as otherwise provided in Section 203, prior to due presentment of a
Registered Security for registration of transfer, the Company, the Guarantor,
the Trustee and any agent of the Company, the Guarantor or the Trustee may
treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307) any
interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Guarantor, the
Trustee nor any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. Except as otherwise provided in Section 203, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Guarantor, the Trustee nor any agent of the Company, the
Guarantor or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and coupons so delivered shall be promptly cancelled
by the Trustee. All Securities and coupons held by the Trustee pending such
cancellation shall be deemed to be delivered for cancellation for all purposes
of this Indenture and the Securities. The Company or the Guarantor may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or the Guarantor may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall furnish a certificate of such
destruction to the Company and the Guarantor.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. Unconditional Guarantee.
The Guarantee to be set forth on each Security shall be in substantially the
following form:
For Value Received, Ameritech Corporation, a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed [and any coupons
appertaining thereto] the due and punctual payment of the principal of,
sinking fund payment, if any, premium, if any, or interest on said
Security, when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise, according to the terms thereof and
of the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether
the Company has available the funds to make such payment as the same shall
become due
21
and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest,
the Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at maturity,
upon redemption, or otherwise, and as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security [or coupon] or said
Indenture, the absence of any action to enforce the same, any waiver or
consent by the Holder of said Security [or coupon] with respect to any
provisions thereof, the recovery of any judgment against the Company or any
action to enforce the same, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of merger or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest or
notice with respect to said Security [or coupon] or indebtedness evidenced
thereby, and all demands whatsoever and covenants that this Guarantee will
not be discharged except by complete performance of the obligations
contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security [and to the rights of any Holder of any coupon] against the
Company in respect of any amounts paid by the Guarantor pursuant to the
provisions of this Guarantee; provided, however, that the Guarantor shall
not, without the consent of the Holders of all of the Securities [and the
Holders of all coupons] then outstanding, be entitled to enforce or to
receive any payments arising out of or based upon such right of subrogation
until the principal of and premium, if any, and interest on all Securities
shall have been paid in full or payment thereof shall have been provided
for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following
any payment of principal or interest by the Company on the Securities to
the Holders of the Securities it is determined by a final decision of a
court of competent jurisdiction that such payment shall be avoided by a
trustee in bankruptcy (including any debtor-in-possession) as a preference
under 11 U.S.C. Section 547 and such payment is paid by such Holder to such
trustee in bankruptcy, then and to the extent of such repayment, the
obligations of the Guarantor hereunder shall remain in full force and
effect.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened prior to the
creation and issuance of this Guarantee and to constitute the same as the
legal, valid and binding obligation of the Guarantor enforceable in
accordance with its terms, have been done and performed and have happened
in due and strict compliance with applicable laws.
This Guarantee shall not be valid or become obligatory for any purpose
with respect to a Security until the certificate of authentication on such
Security shall have been signed by the Trustee (or the Authenticating
Agent).
This Guarantee shall be governed by the internal laws (as opposed to
conflicts of laws provisions) of the State of Illinois.
All terms used in this Guarantee which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
In Witness Whereof, Ameritech Corporation has caused this Guarantee to be
signed in its corporate name by the facsimile signature of one of its
officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
Ameritech Corporation
By: __________________________________
Authorized Officer
22
The form of Guarantee shall be modified or supplemented to the extent
necessary to reflect any additional obligations of the Guarantor applicable to
it pursuant to the terms of any series of Securities.
Section 312. Execution of Guarantees.
To evidence the Guarantee to the Holders specified in Section 311, the
Guarantor hereby agrees to execute the Guarantees, in substantially the form
above recited, to be endorsed on each Security authenticated and delivered by
the Trustee (or the Authenticating Agent). Each such Guarantee shall be signed
on behalf of the Guarantor as set forth in Section 303 prior to the
authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee (or the Authenticating Agent), after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of the Guarantor.
Section 313. Assumption by Guarantor.
(a) The Guarantor may, without the consent of the Holders, assume all of the
rights and obligations of the Company hereunder with respect to a series of
Securities and under the Securities of such series if, after giving effect to
such assumption, no Event of Default or event which with the giving of notice
or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights
and obligations of the Company and the Company shall be released from its
liabilities hereunder and under such Securities as obligor on the Securities
of such series.
(b) The Guarantor shall assume all of the rights and obligations of the
Company hereunder with respect to a series of Securities and under the
Securities of such series if, upon a default by the Company in the due and
punctual payment of the principal, sinking fund payment, if any, premium, if
any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 311
with respect to such series of Securities. Such assumption shall result in the
Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the Holders of the Securities of any
series. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Company, and the Company shall be released from its liabilities hereunder and
under such Securities as obligor on the Securities of such series.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive additional
amounts as provided in Section 1004) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (A) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305, (B)
Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (C)
coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (D) Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
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(ii) all such Securities and, in the case of (A) and (B) below, any
coupons appertaining thereto 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 Date
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 or the Guarantor has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities
and coupons not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and any interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity Date or Redemption Date, as the case may be;
(b) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company and the Guarantor; and
(c) the Company or the Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to clause
(a)(ii) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401, 403 or 1008 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and any interest for whose payment such money
has been deposited with the Trustee.
Section 403. Satisfaction, Discharge and Defeasance of Securities of any
Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, (a)
the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any such series; (b) the
provisions of this Indenture as it relates to such Outstanding Securities
shall no longer be in effect (except as to the rights of Holders of Securities
to receive, from the trust fund described in subparagraph (i) below, payment
of (x) the principal of (and premium, if any) and any installment of principal
of (and premium, if any) or interest on such Securities on the Stated Maturity
Date of such principal (and premium, if any) or installment of principal (and
premium, if any) or interest or (y) any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on that day on
which such payments are due and payable in accordance with the terms of the
Indenture and of such Securities, the Company's obligations with respect to
such Securities under Sections 304, 305, 306, 1002, 1003 and 1004 and the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 607 hereof); and (c) the Trustee, at the expense
of the Company, shall, upon Company Request, execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
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(i) either
(A) with respect to all Outstanding Securities of such series, with
reference to this Section 403, the Company has deposited or caused to
be deposited with the Trustee irrevocably (but subject to the
provisions of Section 402 and the last paragraph of Section 1003), as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
that series, (1) lawful money of the United States in an amount, or (2)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide not later than the opening of business on the due dates of any
payment referred to in clause (x) or (y) of this subparagraph (i)(A)
lawful money of the United States in an amount, or (3) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (x) the
principal of (and premium, if any) and each installment of principal
(and premium, if any) and interest on the Outstanding Securities of
that series on the Stated Maturity Date of such principal or
installment of principal or interest and (y) any mandatory sinking fund
payments or analogous payments applicable to Securities of such series
on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
(ii) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities of such Series;
(iii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(iv) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 501(e) or
Section 501(f) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 501(e) or Section
501(f) shall have occurred and be continuing on the 91st day after such
date;
(v) the Company has delivered to the Trustee an Opinion of Counsel or a
ruling from or published by the United States Internal Revenue Service, to
the effect that Holders of Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred;
(vi) if the Securities of that series are then listed on any domestic or
foreign securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit, defeasance
and discharge will not cause such Securities to be delisted; and
(vii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all Outstanding Securities of any such series have
been complied with and an Opinion of Counsel to the effect that either (A)
as a result of such deposit and the related exercise of the Company's
option under this Section 403, registration is not required under the
Investment Company Act of 1940, as amended, by the Company, the Guarantor,
the trust funds representing such deposit or the Trustee or (B) all
necessary registrations under said Act have been effected.
Any deposits with the Trustee referred to in Section 403(i)(A) above shall
be irrevocable and shall be made under the terms of an escrow trust agreement
in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity
Date, whether pursuant to
25
any optional redemption provisions or in accordance with any mandatory sinking
fund requirement, the applicable escrow trust agreement shall provide therefor
and the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403 with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company and the Guarantees endorsed thereon shall no longer
be binding upon, or applicable to, the Guarantor; provided, that the Company
shall not be discharged from any payment obligations in respect of Securities
of such series which are deemed not to be Outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law and the Guarantor shall not be discharged from
any payment obligations in respect of Guarantees endorsed on such Securities.
Notwithstanding the cessation, termination and discharge of all obligations,
covenants and agreements (except as provided above in this Section 403) of the
Company and the Guarantor under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 607,
and the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive with respect to such series of Securities.
Section 404. Reinstatement.
If the Trustee is unable to apply any money or U.S. Government Obligations
in accordance with Section 401 or 403 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's and the Guarantor's obligations
under this Indenture, the Securities and the Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to Section 401 or 403
until such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 401 or 403; provided,
however, that if the Company or the Guarantor has made any payment of interest
on or principal of any Securities because of the reinstatement of its
obligations, the Company and the Guarantor shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or
U.S. Government Obligations held by the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 90 days; or
(b) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
26
(d) default in the performance, or breach, of any covenant or warranty of
the Company or the Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company or the Guarantor by the Trustee or to the Company or the Guarantor
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or the Guarantor under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or the Guarantor or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(f) the commencement by the Company or the Guarantor of a voluntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company or the Guarantor
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or the Guarantor or of any
substantial part of its property or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or the Guarantor in furtherance of any such
action.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company and the Guarantor (and to
the Trustee if given by the Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if all Events of Default with respect to Securities of that
series, other than non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
27
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company and the Guarantor covenant that if
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 90 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company or the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities and coupons, the whole amount
then due and payable on such Securities and coupons for principal (and
premium, if any) and any interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate or rates prescribed
therefor in such Securities and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Until such demand is made by the Trustee, the Company may pay the principal
of (and premium, if any) and interest on the Securities to the Persons
entitled thereto, whether or not the principal (and premium, if any) and
interest on the Securities are overdue.
If the Company or the Guarantor fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceedings to judgment or final decree and may
enforce the same against the Company, the Guarantor or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company, the Guarantor
or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor or any other
obligor upon the Securities or the property of the Company, the Guarantor 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 or the Guarantor for the
payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and any interest owing and unpaid in respect of the
Securities and to file such other papers 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 of Securities and coupons
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee
28
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities and coupons, to pay to the
Trustee any 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 607 except amounts arising from
the Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities, the
Guarantees or the coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities or coupons, or both, as the
case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: to the payment of the amounts due the Trustee under Section 607;
Second: to the payment of the amounts then due and unpaid for principal
of (and premium, if any) and any interest on the Securities and coupons in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities and coupons for principal (and
premium, if any) and any interest, respectively; and
Third: the balance, if any, to the Person or Persons entitled thereto, as
directed by the Company and the Guarantor.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
29
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) any interest on such Security or payment of such coupon on the
Stated Maturity Date or Maturities expressed in such Security or coupon (or,
in the case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the
Guarantor, the Trustee and the Holders of Securities and coupons shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding has been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders of Securities or coupons, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture or expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and
30
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all of
the Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(a) in the payment of the principal of (or premium, if any) or any
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit (other than the Trustee) of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company or the
Guarantor, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder of any Security or coupon for the enforcement of the
payment of the principal of (or premium, if any) or any interest on any
Security or the payment of any coupon on or after the Stated Maturity Date or
Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date), or for the enforcement of the
rights granted in any Guarantee.
Section 515. Waiver of Stay or Extension Laws.
Each of the Company and the Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law has been enacted.
Section 516. Record Date.
The record date for purposes of determining the identity of Holders of
Securities entitled to vote or consent to any action by vote or consent
authorized or permitted under Section 502, 512 or 513 shall be the later of 30
days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 701 prior
to such solicitation.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) 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, except
as may otherwise be provided in the Trust Indenture Act; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default 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
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) 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 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
(iv) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to
the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in Section 703(c), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of or any premium or interest on any Security of such series or in the payment
of any sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(d) with respect to Securities of such
series, no such notice
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to Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default' means any event which is,
or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of its sole
shareholder (or, if one exists, its board of directors) may be sufficiently
evidenced by a Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company or the Guarantor, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be deemed to have knowledge of a default or an
Event of Default unless a Responsible Officer of the Trustee has received
notice thereof or has actual knowledge thereof.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) and in any coupons shall be taken as the
statements of the Company and the Guarantor, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons or the Guarantees. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 608 and 613, may otherwise
deal with the Company and the Guarantor with the same rights it would have if
it were not the Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company and the Guarantor.
Section 607. Compensation and Reimbursement.
Each of the Company and the Guarantor agrees
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the 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
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense 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 or the performance of its duties
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 and the
Guarantor under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium,
if any) or interest on particular Securities. Payment of any amount due
hereunder by either the Company or the Guarantor shall extinguish the
obligation of the other Person to make such payment.
Section 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as defined
in this Section, with respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such conflicting interest, if
the Event of Default to which such conflicting interest relates has not been
cured or duly waived or otherwise eliminated before the end of the 90-day
period, either eliminate such conflicting interest or, except as set forth
below, resign with respect to the Securities of that series in the manner and
with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section 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 703(c),
to all Holders of Securities of that series notice of such failure.
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(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series if an Event of
Default as to such Securities shall have occurred and be continuing (exclusive
of any grace period or requirement of notice) and if
(i) the Trustee is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Company or the Guarantor are outstanding, unless such other
indenture is a collateral trust indenture under which the only collateral
consists of Securities issued under this Indenture, or the Trustee is trustee
for more than one outstanding series of securities under a single indenture of
the Company, provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Securities of any series other
than that series, and any indenture or indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company or the Guarantor are outstanding, if
(A) this Indenture and any such other indenture or indentures (and all
series of securities issuable thereunder) are wholly unsecured and such
other indenture or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with respect to
Securities of that series and one or more other series or the provisions of
such other indenture or indentures (or such series) which are so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to the Securities of
that series and such other series or under such other indenture or
indentures, or
(B) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon,
that trusteeship under this Indenture with respect to the Securities of that
series and such other series or such other indenture or indentures is not so
likely to involve a material conflict of interest as to make it necessary in
the public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to the
Securities of that series and such other series or under such indenture or
indentures;
(ii) the Trustee or any of its directors or executive officers is an
underwriter for the Company or the Guarantor;
(iii) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with an
underwriter for the Company or the Guarantor;
(iv) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company or the Guarantor, or of an underwriter (other than the Trustee itself)
for the Company or the Guarantor who is currently engaged in the business of
underwriting, except that (A) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive officer, or
both, of the Company or the Guarantor but may not be at the same time an
executive officer of both the Trustee and the Company or the Guarantor; (B) if
and so long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company or the Guarantor; and (C)
the Trustee may be designated by the Company or the Guarantor or by any
underwriter for the Company or the Guarantor to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent
or depository, or in any other similar capacity, or, subject to the provisions
of paragraph (i) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(v) 10% or more of the voting securities of the Trustee is beneficially
owned by the Company or the Guarantor or by any director, partner or executive
officer thereof, or 20% or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons; or 10% or more of the
voting
35
securities of the Trustee is beneficially owned either by an underwriter
for the Company or the Guarantor or by any director, partner or executive
officer thereof, or is beneficially owned, collectively, by any two or more
such persons;
(vi) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (A) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company or the Guarantor not
including the Securities issued under this Indenture and securities issued
under any other indenture under which the Trustee is also trustee, or (B)
10% or more of any class of security of an underwriter for the Company or
the Guarantor;
(vii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company or the Guarantor;
(viii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company or the Guarantor;
(ix) the Trustee owns, on the date on which such Event of Default as to
such Securities (exclusive of any period of grace or requirement of notice)
shall have occurred or any anniversary of such date while such Event of
Default remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (vi), (vii) or (viii) of this
Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the date of any such Event of Default and annually
in each succeeding year in which such Event of Default is continuing, the
Trustee shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company or the
Guarantor fails to make payment in full of the principal of or any premium
or interest on any of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long as
such failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (vi), (vii) and (viii) of this
Subsection; or
(x) except under the circumstances described in paragraphs (i), (iii),
(iv), (v) or (vi) of Section 613(b), the Trustee shall be or shall become a
creditor of the Company.
For the purposes of paragraph (i) of this Subsection and of Sections 502,
512 and 513, the term "series of securities" or "series" means a series, class
or group of securities issuable under an indenture pursuant to whose terms
holders of one such series may vote to direct the Trustee, or otherwise take
action pursuant to a vote of such holders, separately from holders of another
such series; provided, that "series of securities" or "series" shall not
include any series of securities issuable under an indenture if all such
series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (v) to (ix), inclusive, of
this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (iii) or (vii) of this Subsection.
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For the purposes of paragraphs (vi), (vii), (viii) and (ix) of this
Subsection only, (A) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (C) the Trustee shall
not be deemed to be the owner or holder of (1) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not
in default as defined in clause (B) above, or (2) any security which it holds
as collateral security under this Indenture, irrespective of any default
hereunder, or (3) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
Except in the case of a default in the payment of the principal of or any
premium or interest on any Security, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that (i) the default under the Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application, and (ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders of the Securities. The filing
of such an application shall automatically stay the performance of the duty to
resign until the Commission orders otherwise. Any resignation of the Trustee
shall become effective only upon the appointment of a successor trustee and
such successor's acceptance of such an appointment.
(d) For the purposes of this Section:
(i) The term "underwriter", when used with reference to the Company or
the Guarantor, means every person who, within one year prior to the time as
of which the determination is made, has purchased from the Company or the
Guarantor with a view to, or has offered or sold for the Company or the
Guarantor in connection with, the distribution of any security of the
Company or the Guarantor outstanding at such time, or has participated or
has had a direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(ii) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(iii) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(iv) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(v) The term "Company" means any obligor upon the Securities.
(vi) The term "Guarantor" means any obligor upon the Guarantees.
(vii) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
37
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(i) A specified percentage of the voting securities of the Trustee, the
Company, the Guarantor or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means such
amount of the outstanding voting securities of such person as entitles the
holder or holders thereof to cast such specified percentage of the
aggregate votes which the holders of all the outstanding voting securities
of such person are entitled to cast in the direction or management of the
affairs of such person.
(ii) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(iii) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(iv) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(C) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(D) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(v) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) If Section 310(b) of the Trust Indenture Act is amended at any time
after the date of this Indenture to change the circumstances under which a
Trustee shall be determined to have a conflicting interest with respect to the
Securities of any series or to change any of the definitions in connection
therewith, this Section 608 shall be automatically amended to incorporate such
changes.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal or State
authority or, pursuant to such rules and regulations as the Commission may
prescribe, or by order of the Commission on application, a corporation or
other person organized and doing business under the laws of a foreign
government, if such corporation or other Person is (i) authorized under such
laws to exercise corporate trust powers and (ii) subject to supervision or
examination by
38
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any person directly or
indirectly controlling, controlled by or under common control with the Company
shall serve as Trustee 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 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee, the Company
and the Guarantor.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608(a) after written
request therefor by the Company, the Guarantor or any Holder of a Security
who has been a bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company, the Guarantor
or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company or the Guarantor by a Resolution may
remove the Trustee with respect to all Securities, or (B) subject to Section
514 and unless the Trustee's duty to resign has been stayed in accordance with
Section 608(c), any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company and the
Guarantor, by Resolutions, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within sixty (60) days after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company, the
39
Guarantor 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 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company and the Guarantor. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company and the Guarantor or the Holders of Securities and
accepted appointment in the manner required by Section 611, the Trustee or any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantor and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its lien, if any, provided for in Section
607.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees as co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; 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, the Guarantor or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, subject nevertheless
to its lien, if any, provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
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(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee thereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee 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 613. Preferential Collection of Claims Against Company and Guarantor.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or the Guarantor within three months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders of
the Securities and coupons and the holders of other indenture securities, as
defined in Subsection (c) of this Section:
(i) an amount equal to any and all reductions in the amount due and owing
upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and the Guarantor and other creditors of the Company
and the Guarantor, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (ii) of this Subsection,
or from the exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company or the Guarantor upon the date of such default; and
(ii) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such three months' period, or
an amount equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and the Guarantor
and other creditors of the Company and the Guarantor in such property or
such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (1) payments made on account of any
such claim by any Person (other than the Company or the Guarantor) who
is liable thereon, and (2) the proceeds of the bona fide sale of any
such claim by the Trustee to a third Person, and (3) distributions made
in cash, securities or other property in respect of claims filed
against the Company or the Guarantor in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy
Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of
such three months' period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was
so received the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section, would occur
within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
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For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three months' period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders of Securities and the holders of other indenture
securities in such manner that the Trustee, the Holders of Securities and the
holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company or the Guarantor in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
the same percentage of their respective claims, figured before crediting to
the claim of the Trustee anything on account of the receipt by it from the
Company or the Guarantor of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the Holders of
Securities and the holders of other indenture securities dividends on claims
filed against the Company or the Guarantor in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (x) to apportion among the Trustee, the
Holders of Securities and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (y) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions
to be made to the Trustee and the Holders of Securities and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have given
rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within three
months after such resignation or removal.
In any case commenced under the Bankruptcy Act of July 1, 1898 or any
amendment thereto enacted prior to November 6, 1978, all references in this
Subsection to periods of three months shall be deemed to be references to
periods of four months.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(i) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
42
(ii) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders of Securities at the time and in
the manner provided in this Indenture;
(iii) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(iv) an indebtedness created as a result of services rendered or premises
rented, or an indebtedness created as a result of goods or securities sold
in a cash transaction, as defined in Subsection (c) of this Section;
(v) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company or
the Guarantor; and
(vi) the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(i) the term "default" means any failure to make payment in full of the
principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(ii) the term "other indenture securities" means securities upon which
the Company or the Guarantor is an obligor outstanding under any other
indenture (A) under which the Trustee is also trustee, (B) which contains
provisions substantially similar to the provisions of this Section, and (C)
under which a default exists at the time of the apportionment of the funds
and property held in such special account;
(iii) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(iv) the term "self-liquidating paper" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by
the Company or the Guarantor for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company or the Guarantor arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation;
(v) the term "Company" means any obligor upon the Securities;
(vi) the term "Guarantor" means any obligor upon the Guarantees; and
(vii) the term "Federal Bankruptcy Act" means the Bankruptcy Act or Title
11 of the United States Code.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original
issue or upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory
43
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and the Guarantor and
shall at all times be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then, for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of such Authenticating Agent, shall 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 and the Guarantor. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company and the
Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and the Guarantor and shall mail 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 Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
______________________________________
As Trustee
By ___________________________________
As Authenticating Agent
By ___________________________________
Authorized Officer
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee, Company and Guarantor
Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of
Holders.
The Company and the Guarantor will furnish or cause to be furnished to the
Trustee with respect to the Securities of each Series:
(a) semi-annually, not later than February 15 and August 15 in each year,
a list, in such form as the Trustee may reasonably require, containing all
the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities as of the preceding February 1 or August 1, as the
case may be, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company and the Guarantor of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
Section 702. 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 Securities of each Series
(i) contained in the most recent lists furnished to the Trustee as provided in
Section 701, (ii) received by the Trustee in its capacity as Security
Registrar and (iii) filed with it within the two preceding years pursuant to
Section 703(c)(iii). The Trustee may (i) destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished, (ii) destroy
any information received by it as Paying Agent (if so acting) hereunder upon
delivering to itself as Trustee, not earlier than July 1 or January 1, a list
containing the names and addresses of the Holders of Securities obtained from
such information since the delivery of the next previous list, if any, (iii)
destroy any list delivered to itself as Trustee which was compiled from
information received by it as Paying Agent (if so acting) hereunder upon the
receipt of a new list so delivered, and (iv) destroy not earlier than two
years after filing any information filed with it pursuant to Section
703(c)(iii).
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders of Securities with respect to their rights under this Indenture or
under the Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the
45
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interest of the Holders of Securities or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section
702(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after August 15 of each year commencing with the year
1998, the Trustee shall transmit by mail to the Holders of Securities, as
provided in Subsection (c) of this Section, a brief report dated as of such
August 15 with respect to any of the following events which may have occurred
within the previous 12 months (but if no such event has occurred within such
period no report need be transmitted):
(i) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(ii) the creation of any material change to a relationship specified in
paragraphs (i) through (x) of Section 608(c);
(iii) the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior
to that of the Securities, on any property or funds held or collected by it
as Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities Outstanding
on the date of such report;
(iv) the amount, interest rate and maturity date of all other
indebtedness owing by the Company or the Guarantor (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(ii), (iii),
(iv) or (vi);
(v) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(vi) any additional issue of Securities which the Trustee has not
previously reported; and
(vii) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit to the Holders of Securities, as provided in
Subsection (c) of this Section, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of
this Section (or if no such report has yet been so transmitted,
46
since the date of execution of this instrument) for the reimbursement of which
it claims or may claim a lien or charge, prior to that of the Securities, on
property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding at such time, such report to be transmitted within
90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Registered Securities, as the names and addresses
of such Holders appear in the Security Register;
(ii) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(iii) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company and
the Guarantor. The Company and the Guarantor will notify the Trustee when any
Securities are listed on any stock exchange.
Section 704. Reports by Company and Guarantor.
The Company and the Guarantor shall:
(a) file with the Trustee, within 15 days after the Company or the
Guarantor 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 or the
Guarantor may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company or the Guarantor 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 Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company and the Guarantor with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
(c) transmit, within 30 days after the filing thereof with the Trustee,
to the Holders of Securities, in the manner and to the extent provided in
Section 703(c) with respect to reports pursuant to Section 703(a), such
summaries of any information, documents and reports required to be filed by
the Company and the Guarantor pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission; and
(d) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants
under the Indenture, such compliance to be determined without regard to any
period of grace or requirement of notice provided under the Indenture.
47
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company and Guarantor May Consolidate, Etc., Only on Certain
Terms.
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and neither the Company nor the
Guarantor shall permit any Person to consolidate with or merge into it or
convey, transfer or lease its properties and assets substantially as an
entirety to it, unless:
(a) in case the Company or the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company or the Guarantor is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including all additional
amounts, if any, payable pursuant to Section 1004) on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company or the Guarantor to be performed or observed;
(b) immediately after giving effect to such transaction no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(c) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a Mortgage which would not be permitted by Section 1006
without equally and ratably securing the Securities as provided therein,
the Company or such successor corporation or Person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness secured
thereby pursuant to Section 1006.
Section 802. Successor Substituted.
Upon any consolidation of the Company or the Guarantor with, or merger of
the Company or the Guarantor into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company or the Guarantor
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities and coupons and Guarantees, as applicable.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company and
the Guarantor, when authorized by a Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities; or
48
(b) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company or the Guarantor; or
(c) to add any additional Events of Default; or
(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(e) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301; or
(h) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(i) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture or any Security or Guarantee issued hereunder,
provided that any such indenture supplemental hereto shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect.
Section 902. Supplemental 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 each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by a
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, except as otherwise specified as contemplated by
Section 301, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) change the Stated Maturity Date of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change any obligation of the
Company or the Guarantor to pay additional amounts pursuant to Section 1004
(except as contemplated by Section 801(a) and permitted by Section 901(a)),
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 or change the coin or
currency in which any Security or any premium or any interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity Date thereof (or, in the case
of redemption, or on or after the Redemption Date), or
49
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1304 for quorum or voting,
or
(c) change any obligation of the Company to maintain an office or agency
in the places and for the purposes specified in Section 1002, or
(d) except as provided in Section 901(i), modify any of the provisions of
the Guarantee, or
(e) modify any of the provisions of this Section, Section 513 or Section
1007, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder of a Security or coupon with respect to changes in
the references to "the Trustee" and concomitant changes in this Section and
Section 1007, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(h). A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every
Holder of Securities theretofore and thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee, the Company and the Guarantor, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered (with duly executed Guarantees endorsed thereon)
by the Trustee in exchange for Outstanding Securities of such series.
50
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company
or the Guarantor in respect of the Securities of that series and this
Indenture may be served. Except as otherwise specified as contemplated by
Section 301, if Securities of a series are issuable as Bearer Securities, the
Company will maintain (a) in the United States, 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 or the
Guarantor in respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related coupons may
be presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (b) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 1004); provided, however, that if the Securities of
that series are listed on The International Stock Exchange, London, the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in London,
Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (c) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company
or the Guarantor in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee and the Holders of the location, and any change in the location, of
any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency in respect of any series of Securities or
shall fail to furnish the Trustee with the address thereof, such presentations
and surrenders of Securities of that series may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1004)
at an office maintained by the Trustee in London, and the Company hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
Except as otherwise specified as contemplated by Section 301, no payment of
principal, 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,
51
payment of principal of and any premium and interest on any Bearer Security
(including any additional amounts payable on Securities of such series
pursuant to Section 1004) shall be made at the office of the Company's Paying
Agent in the United States, 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
that purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee and the Holders of any such designation or
rescission and of any change in the location of any such other office or
agency.
Except as otherwise specified as contemplated by Section 301, the Company
hereby appoints the Trustee as the initial Paying Agent and designates the
Corporate Trust Office of the Trustee as its office for the purposes of and
pursuant to this Section 1002.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of and any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of and any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of and any
premium or interest on Securities of that series in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal of and any premium or interest on the Securities of that series;
and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as
52
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
or any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be transmitted
in the manner and to the extent provided by Section 106, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional amounts,
the Company will pay to the Holder of any Security of such series or any
coupon appertaining thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is
not made.
If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent
or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities
of that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability
or expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them
in reliance on any Officers' Certificate furnished pursuant to this Section.
Section 1005. Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The International
Stock Exchange, London and such stock exchange shall so require, the Company
will not, and will not permit any of its Subsidiaries to, purchase any
Securities of that series by private treaty at a price (exclusive of expenses
and accrued interest) which exceeds 120% of the mean of the nominal quotations
of the Securities of that series as shown in The Stock Exchange Daily Official
List for the last trading day preceding the date of purchase.
53
Section 1006. Lien on Assets.
If at any time the Company mortgages, pledges or otherwise subjects to any
lien the whole or any part of any property or assets now owned or hereafter
acquired by it, except as hereinafter provided in this Section 1006, the
Company will secure the outstanding Securities, and any other obligations of
the Company which may then be outstanding and entitled to the benefit of a
covenant similar in effect to this covenant, equally and ratably with the
indebtedness or obligations secured by such mortgage, pledge, or lien, for as
long as any such indebtedness or obligation is so secured. The foregoing
covenant does not apply to the creation, extension, renewal or refunding of
landlords' liens, liens with respect to the sale or financing of accounts or
chattel paper, purchase-money mortgages or liens, liens arising under the
Internal Revenue Code of 1986, as amended, or liens with respect to taxes,
assessments or other governmental charges or levies which may be owed by the
Company from time to time and which, if delinquent, are being contested in
good faith, or other liens to which any property or asset acquired by the
Company is subject as of the date of its acquisition by the Company, or to the
making of any deposit or pledge to secure public or statutory obligations or
with any governmental agency at any time required by law in order to qualify
the Company to conduct its business or any part thereof or in order to entitle
it to maintain self-insurance or to obtain the benefits of any law relating to
workmen's compensation, unemployment insurance, old age pensions or other
social security, or with any court, board, commission, or governmental agency
as security incident to the proper conduct of any proceeding before it.
Nothing contained in this Indenture prevents any entity other than the Company
from mortgaging, pledging, or subjecting to any lien any property or assets,
whether or not acquired by such Person from the Company.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1006, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
Section 1008. Defeasance of Certain Obligations.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company may omit to comply with
any term, provision or condition set forth in Sections 801, 1005 and 1006, and
any such omission with respect to Sections 801, 1005 and 1006, shall not be an
Event of Default, in each case with respect to the Securities of that series,
provided that the following conditions have been satisfied:
(a) with reference to this Section, the Company has deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) irrevocably (but subject to the provisions of
Section 402 and the last paragraph of Section 1003), as trust funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of that series, (i) lawful money
of the United States in an amount, or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than the opening of
business on the due dates of any payment referred to in clause (A) or (B)
of this subparagraph (a) lawful money of the United States in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge (A)
the principal of (and premium, if any) and each installment of principal
(and premium, if any) and interest on the Outstanding Securities of that
series on the Stated Maturity Date of such principal or installment of
principal or interest and (B) any mandatory sinking fund payments or
analogous payments applicable to Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities;
54
(b) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(c) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company or the Guarantor is a party or by which it
is bound;
(d) no Event of Default or event which with the giving of notice or lapse
of time, or both, would become an Event of Default with respect to the
Securities of that series shall have occurred and be continuing on the date
of such deposit and no Event of Default under Section 501(e) or Section
501(f) or event which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 501(e) or Section 501(f)
shall have occurred and be continuing on the 91st day after such date;
(e) the Company has delivered to the Trustee an Opinion of Counsel or a
ruling from or published by the United States Internal Revenue Service, to
the effect that Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to
federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred;
(f) if the Securities of that series are then listed on any foreign or
domestic securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that such deposit and defeasance will not
cause such Securities to be delisted; and
(g) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the defeasance contemplated in this Section have
been complied with and an Opinion of Counsel to the effect that either (i)
as a result of such deposit and the related exercise of the Company's
option under this Section, registration is not required under the
Investment Company Act of 1940, as amended, by the Company, the trust funds
representing such deposit or the Trustee or (ii) all necessary
registrations under said Act have been effected.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
Date shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a
Resolution of the Company. In the case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
55
Section 1103. 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 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Registered Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If so specified in the Securities of a series, partial
redemptions must be in an amount not less than $1,000,000 principal amount of
Securities.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 to
the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case. A
notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such
56
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 Date is on
or prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified as contemplated by Section 301, only
upon presentation and surrender of coupons for such interest; and provided,
further, that, unless otherwise specified as contemplated by Section 301,
installments of interest on Registered Securities whose Stated Maturity Date
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Sections 305 and 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company, the Guarantor and the Trustee
if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver (with a duly
executed Guarantee endorsed thereon) to the Holder of such Security without
service charge, a new Registered Security or Securities of the same series and
of like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Security in permanent
global form is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver (with a duly executed Guarantee endorsed
thereon) to the U.S. Depositary or Common Depositary for such Security in
permanent global form, without service charge, a new Security in permanent
global form in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Security in permanent global form so
surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
57
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(b) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, that such Securities have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities
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 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1301, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, Chicago,
Illinois, or 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 106, not less than
21 nor more than 180 days prior to the date fixed for the meeting.
58
(b) In case at any time the Company or the Guarantor, pursuant to a
Resolution or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1301, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, the Company, the Guarantor 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, Chicago, Illinois, or London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company or the Guarantor and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides must be given by the Holders of a greater
percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote such percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to
a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any consent or waiver which this Indenture expressly provides
must be given by the Holders of a greater percentage in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such percentage in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
59
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.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing
the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or the Guarantor or by Holders of Securities as provided in Section
1302(b), in which case the Company or the Guarantor or the Holders of
Securities of the series calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
60
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.
(Seal) Ameritech Capital Funding
Corporation
Attest: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ F. Xxxxxx Xxxxxxx
-------------------------- ---------------------------------
Title: Vice President & Chief
Financial Officer
------------------------------
(Seal) Ameritech Corporation
Attest: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------- ---------------------------------
Title: Assistant Treasurer
------------------------------
(Seal) Xxxxxx Trust and Savings Bank
Attest: /s/ X. X. Xxxxxxx By: /s/ X. Xxxxxxxxx
-------------------------- ---------------------------------
Title: Vice President
------------------------------
State of Illinois
ss:
County of Xxxx
On the 8th day of October, 1997, before me personally came F. Xxxxxx Xxxxxxx
to me known, who, being by me duly sworn, did depose and say that he is Vice
President and Chief Financial Officer of Ameritech Capital Funding
Corporation, 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 sole shareholder of said corporation, and that he signed
his name thereto by like authority.
(Seal)
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public
State of Illinois
ss:
County of Xxxx
On the 8th day of October, 1997, before me personally came Xxxxx X. Xxxxxxxx
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Treasurer of Ameritech Corporation, 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.
(Seal)
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Notary Public
00
Xxxxx xx Xxxxxxxx
xx:
Xxxxxx xx Xxxx
Xx the 8th day of October, 1997, before me personally came X. Xxxxxxxxx to
me known, who, being by me duly sworn, did depose and say that she is Vice
President of Xxxxxx Trust and Savings Bank, an Illinois banking corporation
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
corporation's 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.
(Seal)
/s/ Xxxxxxxx Xxxxxxxxx
-------------------------------------
Notary Public
62
EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT
AN ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
AMERITECH CAPITAL FUNDING CORPORATION
No. [R-] [U.S.] $
[If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository,
insert--Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co., or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
ISSUE PRICE:
INTEREST PAYMENT DATES:
ORIGINAL ISSUE DATE:
INITIAL REDEMPTION DATE:
STATED MATURITY:
YIELD TO MATURITY:
BASE RATE:
OPTION TO ELECT REPAYMENT: YES NO
INITIAL INTEREST RATE:
OPTIONAL REPAYMENT DATES:
INDEX MATURITY:
OPTIONAL REPAYMENT PRICES:
SPREAD (PLUS OR MINUS):
OPTIONAL RESET DATES:
SPREAD MULTIPLIER:
OPTIONAL EXTENSION: YES NO
MAXIMUM INTEREST RATE:
FINAL MATURITY:
MINIMUM INTEREST RATE:
DEPOSITORY:
INTEREST RESET PERIOD:
REPAYMENT PROVISIONS (If
INTEREST RESET DATES: applicable):
OTHER PROVISIONS:
Ameritech Capital Funding Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to , or registered
assigns, the principal sum of [United States] Dollars on and to pay
interest thereon from , 19 , or from the most recent Interest Payment
Date to which interest has been paid or duly provided for in arrears [If
applicable, insert--; provided, however, that if this Security has a weekly
Interest Rate Reset Period, as shown above, such interest will be paid from
the Original Issue Date shown above or from the day following the most recent
Regular Record Date to which interest has been paid or duly provided for in
arrears]. Interest will be paid [semi-annually in arrears on and
in each year] [annually in arrears on in each year] ([each] an
"Interest Payment Date") commencing 19 , at the rate of % per annum
[or describe formula to calculate rate, e.g., commercial paper rate], until
the principal hereof is paid or made available for payment. [If applicable,
insert--, and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of % per annum on any overdue principal
[and premium] and on any overdue installment of interest]. The interest so
payable, and punctually
A-1
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [or ]
(whether or not a Business Day) [,as the case may be,] next preceding such
Interest Payment Date; provided, however, that interest payable at Maturity
will be payable to the Person to whom principal shall be payable. The first
payment of interest on any Security originally issued between a Regular Record
Date and an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the registered owner on
such Regular Record Date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of [(and premium, if any)] and interest on
this Security will be made at [the office or agency of the Company maintained
for that purpose in , in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts] [the option of the Holder (a) at [the Corporate Trust Office of
the Trustee] or such other office or agency of the Company as may be
designated by it for such purpose in the United States of America, in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts or (b)
subject to any laws or regulations applicable thereto and to the right of the
Company (limited as provided in the Indenture) to rescind the designation of
any such Paying Agent, at the [main] offices of in ,
in , in and in , or at such
other offices or agencies as the Company may designate, by United States
dollar check drawn on, or transfer to a United States dollar account
maintained by the payee with, a bank in the United States of America.] [If
applicable, insert--; provided, however, that at the option of the Company
payment of interest may be made by United States dollar check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register] [or by wire transfer to an account maintained by such
Person with a bank in the continental United States (so long as the Company
has received proper transfer instructions in writing)].
[If the registered owner of this Security is the Depository or a nominee of
the Depository, insert--THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
A-2
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Ameritech Capital Funding
Corporation
By___________________________________
Authorized Officer
[Seal]
Attest:
-------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Xxxxxx Trust and Savings Bank,
as Trustee
[By_________________________________]
As Authenticating Agent
By___________________________________
Authorized Officer
A-3
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of , 1995, (herein called the
"Indenture"), among the Company, the Guarantor and Xxxxxx Trust and Savings
Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [,
limited in aggregate principal amount to [U.S.] $ ].
[If applicable, insert--Calculation of the Spread and Spread Multiplier
shall be done in accordance with the Indenture, as it may be amended or
supplemented to the date hereof.]
[If applicable, insert--The Securities of this series are subject to
redemption [(1)] [If applicable, insert--on in any year commencing with
the year and ending with the year through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, [and](2)] [If applicable, insert--at any time [on or after 19 ], as
a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount); If
redeemed [on or before , %, and if redeemed] during the 12-month
period beginning of the years indicated,
REDEMPTION
YEAR PRICE
---- ----------
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at a Redemption Price equal to % of the principal amount,] [If
applicable, insert--[and ()] under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal to 100% of the
principal amount,] together in the case of any such redemption [If applicable,
insert--(whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date; provided, however, that installments
of interest on this Security whose Stated Maturity Date is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption (1) on in any year commencing with the year and ending
with the year through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ] , as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning of the years indicated,
REDEMPTION PRICE FOR REDEMPTION PRICE FOR
REDEMPTION THROUGH REDEMPTION OTHERWISE
YEAR OPERATION OF THE THAN THROUGH OPERATION
---- SINKING FUND OF THE SINKING FUND
-------------------- ----------------------
A-4
and thereafter at a Redemption Price equal to % of the principal amount.
[If applicable, insert--and (3) under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal to 100% of the
principal amount,] together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity Date is on or prior to such Redemption Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to , redeem
any Securities of this series as contemplated by Clause [(2)] above as a part
of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice)
of less than % per annum.]
[If applicable, insert--The sinking fund for this series provides for the
redemption on in each year, beginning with the year and ending with
the year , of [not less than] [U.S.] $ [("mandatory sinking fund")
and not more than [ U.S.]$ aggregate principal amount of Securities of
this series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made--in the inverse order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
[If applicable, insert--The Indenture contains provisions for defeasance of
(a) the entire indebtedness of this Security and (b) certain restrictive
covenants upon compliance by the Company with certain conditions set forth
therein.]
[If applicable, insert--If so specified on the face hereof, the interest
rate on this Security may be reset by the Company on the date or dates
specified on the face hereof (each an "Optional Reset Date"). Not later than
days prior to each Optional Reset Date, the Trustee will mail to the
Holder of this Security a notice (the "Reset Notice") first-class postage
prepaid indicating whether the Company has elected to reset the interest rate,
and if so (a) such new interest rate and (b) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next
Optional Reset Date or if there is no such Optional Reset Date, to the Stated
Maturity of this Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
provided for in the Reset Notice and establish a higher interest rate for the
Subsequent Interest Period by causing the Trustee to mail notice of such
higher interest rate to the Holder of this Security. Such notice shall be
irrevocable. All Registered Securities with respect to which the interest rate
is reset on an Optional Reset Date will bear such higher interest rate.
The Holder of this Security will have the option to elect repayment by the
Company on each Optional Reset Date at a price equal to the principal amount
hereof plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the procedures set
forth below for optional repayment except that the period for delivery or
notification to the Trustee shall be at least but not more than
days prior to such Optional Reset Date and except that, if the Holder has
tendered
A-5
this Security for repayment pursuant to the Reset Notice, the Holder may, by
written notice to the Trustee, revoke such tender or repayment until the close
of business on the day before such Optional Reset Date.]
[If applicable, insert--If so specified on the face hereof, the Maturity of
this Security may be extended at the option of the Company for the period or
period of whole years specified on the face hereof (each an "Extension
Period") up to but not beyond the date (the "Final Maturity") set forth on the
face hereof. If the Company exercises such option, the Trustee will mail to
the Holder of this Security not later than days prior to the old Stated
Maturity a notice (the "Extension Notice") first-class postage prepaid
indicating (a) the election of the Company to extend the Maturity, (b) the new
Stated Maturity, (c) the interest rate applicable to the Extension Period and
(d) the provisions, if any, for redemption during such Extension Period. Upon
the Trustee's mailing of the Extension Notice, the Maturity of this Security
shall be extended automatically and, except as modified by the Extension
Notice and as described in the next paragraph, this Security will have the
same terms as prior to the mailing of such Notice.
Notwithstanding the foregoing, not later than days before the old
Stated Maturity of this Security the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to mail notice
of such higher interest rate first-class postage prepaid to the Holder of this
Security. Such notice shall be irrevocable. All Registered Securities with
respect to which the Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of this Security, the Holder will have
the option to elect repayment of this Security by the Company on the old
Stated Maturity at a price equal to the principal amount hereof, plus interest
accrued to such date. In order to obtain repayment on the old Stated Maturity
once the Company has extended the Maturity hereof, the Holder must follow the
procedures set forth below for optional repayment, except that the period for
delivery or notification to the Trustee shall be at least but not more
than days prior to the old Stated Maturity and except that, if the Holder
has tendered this Security for repayment pursuant to an Extension Notice, the
Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the day before the old Stated Maturity.]
[If applicable, insert--If so specified on the face hereof, this Security
will be repayable prior to Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with accrued interest to the date of
repayment. In order for this Security to be repaid, the Trustee must receive
at least but not more than days prior to an Optional Repayment Date
(a) this Security with the form entitled "Option to Elect Repayment" duly
completed or (b) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Security, the
principal amount of the Security to be repaid, the certificate number or a
description of the tenor and terms of this Security, a statement that the
option to elect repayment is being exercised thereby and a guarantee that this
Security with the form entitled "Option to Elect Repayment" duly completed
will be received by the Trustee not later than Business Days after the
date of such telegram, telex, facsimile transmission or letter. If the
procedure described in clause (b) of the preceding sentence is followed, this
Security with such form duly completed must be received by the Trustee by such
Business Day. Any tender of this Security for repayment [(except pursuant
to a Reset Notice or an Extension Notice)] shall be irrevocable. The repayment
option may be exercised by the Holder of this Security for less than the
entire principal amount of the Security provided that the principal amount of
the Security remaining outstanding after repayment is an authorized
denomination. Upon such partial repayment this Security shall be cancelled and
a new Security or Securities for the remaining principal amount hereof shall
be issued in the name of the Holder of this Security.]
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
A-6
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to
be affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to this series, the Holders of not less than 25%
in principal amount of the Outstanding Securities of this series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding
Securities of this series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days; provided, however,
that such limitations do not apply to a suit instituted by the Holder hereof
for the enforcement of payment of the principal of [(and premium, if any)] or
interest on this Security on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)]
and interest on this Security at the times, place[s] and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in [any place where the principal of [(and premium, if
any)] and interest on this Security are payable] [the United States of
America, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of in
and in or at such other offices or agencies as the
Company may designate], duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form, without
coupons, in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of the series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
[If applicable, insert--If this Security is a global Security (as specified
on the face hereof), this Security is exchangeable only if (x) the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for this global Security or if at any time the Depository ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, (y) the Company in its sole discretion determines that this Security
shall be exchangeable for definitive Securities in registered form or (z) an
Event of Default, or an
A-7
event which with the passage of time or the giving of notice would become an
Event of Default, with respect to the Securities represented hereby has
occurred and is continuing, provided that the definitive Securities so issued
in exchange for this permanent global Security shall be in denominations of
$100,000 and any integral multiple of $1,000 in excess thereof and be of like
aggregate principal amount and tenor as the portion of this permanent global
Security to be exchanged, and provided further that, unless the Company agrees
otherwise, Securities of this series in definitive registered form will be
issued in exchange for this permanent global Security, or any portion hereof,
only if such Securities in definitive registered form were requested by
written notice to the Trustee or the Security Registrar by or on behalf of a
Person who is beneficial owner of an interest hereof given through the Holder
hereof. Except as provided above, owners of beneficial interests in this
permanent global Security will not be entitled to receive physical delivery of
Securities in definitive registered form and will not be considered the
Holders thereof for any purpose under the Indenture.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
is overdue, and neither the Company, the Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
GUARANTEE
For Value Received, Ameritech Corporation, a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, or interest on
said Security, when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise, according to the terms thereof and of
the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest,
the Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at maturity, upon
redemption, or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to said Security or indebtedness
evidenced thereby, and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in said Security and in this Guarantee.
A-8
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the
Securities then outstanding, be entitled to enforce or to receive any payments
arising out of or based upon such right of subrogation until the principal of
and premium, if any, and interest on all Securities shall have been paid in
full or payment thereof shall have been provided for in accordance with said
Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Company on the Securities to the
Holders of the Securities it is determined by a final decision of a court of
competent jurisdiction that such payment shall be avoided by a trustee in
bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such Holder to such trustee in
bankruptcy, then and to the extent of such repayment, the obligations of the
Guarantor hereunder shall remain in full force and effect.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened prior to the
creation and issuance of this Guarantee and to constitute the same as the
legal, valid and binding obligation of the Guarantor enforceable in accordance
with its terms, have been done and performed and have happened in due and
strict compliance with applicable laws.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to a Security until the certificate of authentication on such Security
shall have been signed by the Trustee (or the Authenticating Agent).
This Guarantee shall be governed by the internal laws (as opposed to
conflicts of laws provisions) of the State of Illinois.
All terms used in this Guarantee which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
In Witness Whereof, Ameritech Corporation has caused this Guarantee to be
signed in its corporate name by the facsimile signature of one of its officers
thereunto duly authorized and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted or otherwise reproduced hereon.
Dated as of: , 19
Ameritech Corporation
By: _________________________________
Authorized Officer
[Seal]
A-9
----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT-- ________________ Custodian ________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------
For Value Received, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
-------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ________________________________________________________________
________________________ attorney to transfer said Security on the books of the
Company, with full power of substitution in the premises.
Dated:
_____________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
A-10
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES XX XXXXXXXX 0000 XXX 0000 XX XXX XXXXXX XXXXXX INTERNAL REVENUE
CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS
PRINCIPAL AMOUNT, THE ISSUE DATE IS , 19 , [AND] THE YIELD TO
MATURITY IS % [, THE METHOD USED TO DETERMINE THE YIELD IS AND THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF
, 19 TO , 19 , IS % OF THE PRINCIPAL AMOUNT OF
THIS SECURITY].
AMERITECH CAPITAL FUNDING CORPORATION
No. [R- ] [U.S.] $
[If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository,
insert--Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co., or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
INITIAL REDEMPTION DATE:
ISSUE PRICE:
TOTAL AMOUNT OF OID:
ORIGINAL ISSUE DATE:
YIELD TO MATURITY:
STATED MATURITY:
INITIAL ACCRUAL PERIOD OID:
BASE RATE:
OPTION TO ELECT REPAYMENT: YES NO
INITIAL INTEREST RATE:
OPTIONAL REPAYMENT DATES:
INDEX MATURITY:
OPTIONAL REPAYMENT PRICES:
SPREAD (PLUS OR MINUS):
OPTIONAL RESET DATES:
SPREAD MULTIPLIER:
OPTIONAL EXTENSION: YES NO
MAXIMUM INTEREST RATE:
FINAL MATURITY:
MINIMUM INTEREST RATE:
DEPOSITORY:
INTEREST RESET PERIOD:
REPAYMENT PROVISIONS (If
INTEREST RESET DATES: applicable):
INTEREST PAYMENT DATES: OTHER PROVISIONS:
Ameritech Capital Funding Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to , or
registered assigns the principal sum of [United States] Dollars on
[If the Security is interest-bearing, insert--, and to pay
interest thereon from , 19 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for in arrears
[If applicable, insert--; provided, however, that if this Security has a
weekly Interest Rate Reset Period, as shown above, such interest will be paid
from the Original Issue Date shown above or from the day following the most
recent Regular Record Date to which interest has been paid or duly provided
for in arrears]. Interest will be paid [semi-annually in arrears on
B-1
and in each year] [annually in arrears on in each
year] ([each] an "Interest Payment Date"), commencing , 19 at the
rate of % [or describe formula to calculate rate, e.g. commercial paper
rate] per annum, until the principal hereof is paid or made available for
payment. [If applicable, insert--, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of % per annum on any
overdue principal [and premium] and on any overdue installment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the [or ] (whether or not a
Business Day) [, as the case may be,] next preceding such Interest Payment
Date; provided, however, that interest payable at Maturity will be payable to
the Person to whom principal shall be payable. The first payment of interest
on any Security originally issued between a Regular Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Regular Record Date to the registered owner on such Regular
Record Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the Payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture]. [If
the Security is not to bear interest prior to Maturity, insert--The principal
of this Security shall not bear interest except in the case of a default in
payment of principal upon acceleration, upon redemption or at Stated Maturity
Date, and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.] Payment of the principal of [(and premium, if any)] and [If
applicable, insert--any such] interest on this Security will be made at [the
office or agency of the Company maintained for that purpose in , in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts] [the option
of the Holder (a) at [the Corporate Trust Office of the Trustee] or such other
office or agency of the Company as may be designated by it for such purpose in
the United States of America, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts or (b) subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided in the Indenture)
to rescind the designation of any such Paying Agent, at the (main) offices of
in , in , in , in and in , or at
such other offices or agencies as the Company may designate, by United States
dollar check drawn on, or transfer to a United States dollar account
maintained by the payee with a bank in the United States of America [If
applicable, insert--; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register] [or by
wire transfer to an account maintained by such Person with a bank in the
continental United States (so long as the Company has received proper transfer
instructions in writing)].
[If the registered owner of this Security is the Depository or a nominee of
the Depository, insert--THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO
A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.]
B-2
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Ameritech Capital Funding
Corporation
By___________________________________
Authorized Officer
Dated:
[Seal]
Attest:
------------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Xxxxxx Trust and Savings Bank,
as Trustee
[By_________________________________]
As Authenticating Agent
By___________________________________
Authorized Officer
B-3
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of , 19 among the Company, the
Guarantor and Xxxxxx Trust and Savings Bank, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantor, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
[U.S.] $ ].
[If applicable, insert--Calculation of the Spread and Spread Multiplier
shall be done in accordance with the Indenture, as it may be amended or
supplemented to the date hereof.]
[If applicable, insert--The Securities of this series are subject to
redemption [(1)] [If applicable, insert--on in any year
commencing with the year and ending with the year through operation
of the sinking fund for this series at a Redemption Price equal to [Insert
formula for determining the amount], [and] (2)] [If applicable, insert--at any
time [on or after , 19 ], as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before , %, and
if redeemed] during the 12-month period beginning of the
years indicated,
REDEMPTION
YEAR PRICE
---- ----------
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at a Redemption Price equal to % of the principal amount,]
[If applicable, insert--[and ( )] under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to [Insert
formula for determining the amount]] [If the Security is interest-bearing,
insert--, together in the case of any such redemption [If applicable, insert--
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity Date is on or prior to such
Redemption Date will be payable to the Holder of this Security, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption (1) on in any year commencing with the year
and ending with the year through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [on or after , 19 ], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning of the years indicated,
REDEMPTION PRICE FOR REDEMPTION PRICE FOR
REDEMPTION THROUGH REDEMPTION OTHERWISE
YEAR OPERATION OF THE THAN THROUGH OPERATION
---- SINKING FUND OF THE SINKING FUND
-------------------- ----------------------
B-4
and thereafter at a Redemption Price equal to % of the principal amount.
[If applicable, insert--and (3) under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal to [Insert formula
for determining the amount]] [If the Security is interest-bearing, insert--,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity Date is on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.] [Notwithstanding the foregoing, the
Company may not, prior to , redeem any Securities of this
series as contemplated by Clause [(2)] above as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than %, per
annum.]
[If applicable, insert--The sinking fund for this series provides for the
redemption on in each year, beginning with the year and ending
with the year , of [not less than] [U.S.] $ [("mandatory sinking
fund") and not more than [U.S.] $ aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise
required to be made--in the inverse order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
[If applicable, insert--The Indenture contains provisions for defeasance of
(a) the entire indebtedness of this Security and (b) certain restrictive
covenants upon compliance by the Company with certain conditions set forth
therein.]
[If applicable, insert--If so specified on the face hereof, the interest
rate on this Security may be reset by the Company on the date or dates
specified on the face hereof (each an "Optional Reset Date"). Not later than
days prior to each Optional Reset Date, the Trustee will mail to the Holder
of this Security a notice (the "Reset Notice") first-class postage prepaid
indicating whether the Company has elected to reset the interest rate, and if
so (a) such new interest rate and (b) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset
Date or if there is no such Optional Reset Date, to the Stated Maturity of
this Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest
Period.
Notwithstanding the foregoing, not later than days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate provided
for in the Reset Notice and establish a higher interest rate for the
Subsequent Interest Period by causing the Trustee to mail notice of such
higher interest rate to the Holder of this Security. Such notice shall be
irrevocable. All registered Securities with respect to which the interest rate
is reset on an Optional Reset Date will bear such higher interest rate.
The Holder of this Security will have the option to elect repayment by the
Company on each Optional Reset Date at a price equal to the principal amount
hereof plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the procedures set
forth below for optional repayment except that the period for delivery or
notification to the Trustee shall be at least but not more than days
prior to such Optional Reset Date and except that, if the Holder has tendered
this Security for repayment pursuant to the Reset Notice, the Holder may, by
written notice to the Trustee, revoke such tender or repayment until the close
of business on the day before such Optional Reset Date.]
B-5
[If applicable, insert--If so specified on the face hereof, the Maturity of
this Security may be extended at the option of the Company for the period or
period of whole years specified on the face hereof (each an "Extension Period")
up to but not beyond the date (the "Final Maturity") set forth on the face
hereof. If the Company exercises such option, the Trustee will mail to the
Holder of this Security not later than days prior to the old Stated Maturity a
notice (the "Extension Notice") first-class postage prepaid indicating (a) the
election of the Company to extend the Maturity, (b) the new Stated Maturity, (c)
the interest rate applicable to the Extension Period and (d) the provisions, if
any, for redemption during such Extension Period. Upon the Trustee's mailing of
the Extension Notice, the Maturity of this Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, this Security will have the same terms as prior to the
mailing of such Notice.
Notwithstanding the foregoing, not later than days before the old Stated
Maturity of this Security the Company may, at its option, revoke the interest
rate provided for in the Extension Notice and establish a higher interest rate
for the Extension Period by causing the Trustee to mail notice of such higher
interest rate first-class postage prepaid to the Holder of this Security. Such
notice shall be irrevocable. All Registered Securities with respect to which the
Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of this Security, the Holder will have the
option to elect repayment of this Security by the Company on the old Stated
Maturity at a price equal to the principal amount hereof, plus interest accrued
to such date. In order to obtain repayment on the old Stated Maturity once the
Company has extended the Maturity hereof, the Holder must follow the procedures
set forth below for optional repayment except that the period for delivery or
notification to the Trustee shall be at least but not more than days prior to
the old Stated Maturity and except that, if the Holder has tendered this Note
for repayment pursuant to an Extension Notice, the Holder may by written notice
to the Trustee revoke such tender for repayment until the close of business on
the day before the old Stated Maturity.]
[If applicable, insert--If so specified on the face hereof, this Security will
be repayable prior to Maturity at the option of the Holder on the Optional
Repayment Dates shown on the face hereof at the Optional Repayment Prices shown
on the face hereof together with accrued interest to the date of repayment. In
order for this Security to be repaid, the Trustee must receive at least but not
more than days prior to an Optional Repayment Date (a) this Security with the
form entitled "Option to Elect Repayment" duly completed or (b) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States of America setting forth the name of
the Holder of this Security, the principal amount of the Security to be repaid,
the certificate number or a description of the tenor and terms of this Security,
a statement that the option to elect repayment is being exercised thereby and a
guarantee that this Security with the form entitled "Option to Elect Repayment"
duly completed will be received by the Trustee not later than Business Days
after the date of such telegram, telex, facsimile transmission or letter. If the
procedure described in clause (b) of the preceding sentence is followed, this
Security with such form duly completed must be received by the Trustee by such
Business Day. Any tender of this Security for repayment [(except pursuant to a
Reset Notice or an Extension Notice)] shall be irrevocable. The repayment option
may be exercised by the Holder of this Security for less than the entire
principal amount of the Security provided that the principal amount of the
Security remaining outstanding after repayment is an authorized denomination.
Upon such partial repayment this Security shall be cancelled and a new Security
or Securities for the remaining principal amount hereof shall be issued in the
name of the Holder of this Security.]
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [--insert formula for determining the
amount.] Upon payment (a) of the amount of principal so declared due and payable
and (b) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.
B-6
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to
be affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to this series, the Holders of not less than 25%
in principal amount of the Outstanding Securities of this series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding
Securities of this series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days; provided, however,
that such limitations do not apply to a suit instituted by the Holder hereof
for the enforcement of payment of the principal of [(and premium, if any)] or
[any] interest on this Security on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)]
and [any] interest on this Security at the times, place[s] and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in [any place where the principal of [(and premium, if
any)] and [any] interest on this Security are payable] [the United States of
America, or, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind the
designation of any such transfer agent, at the [main] offices of in
and in or at such other offices or agencies as the
Company may designate], duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form, without
coupons, in denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
[Insert, if applicable--If this Security is a global Security (as specified
on the face hereof), this Security is exchangeable only if (x) the Depository
notifies the Company that it is unwilling or unable to continue as Depository
for this global Security or if at any time the Depository ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, (y) the Company in its sole discretion determines that this Security
shall be exchangeable for definitive Securities in registered form or (z) an
Event of Default, or an event which with the passage of time or the giving of
notice would become an Event of Default, with respect to the Securities
represented hereby has occurred and is continuing, provided that the
definitive Securities so issued
B-7
in exchange for this permanent global Security shall be in denominations of
$100,000 and any integral multiple of $1,000 in excess thereof and be of like
aggregate principal amount and tenor as the portion of this permanent global
Security to be exchanged, and provided further that, unless the Company agrees
otherwise, Securities of this series in definitive registered form will be
issued in exchange for this permanent global Security, or any portion hereof,
only if such Securities in definitive registered form were requested by
written notice to the Trustee or the Security Registrar by or on behalf of a
Person who is beneficial owner of an interest hereof given through the Holder
hereof. Except as provided above, owners of beneficial interests in this
permanent global Security will not be entitled to receive physical delivery of
Securities in definitive registered form and will not be considered the
Holders thereof for any purpose under the Indenture.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
is overdue, and neither the Company, the Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
GUARANTEE
For Value Received, Ameritech Corporation, a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to the Holder of the Security
upon which this Guarantee is endorsed the due and punctual payment of the
principal of, sinking fund payment, if any, premium, if any, or interest on
said Security, when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise, according to the terms thereof and of
the Indenture referred to therein.
The Guarantor agrees to determine, at least one business day prior to the
date upon which a payment of principal of, sinking fund payment, if any,
premium, if any, or interest on said Security is due and payable, whether the
Company has available the funds to make such payment as the same shall become
due and payable. In case of the failure of the Company punctually to pay any
such principal, sinking fund payment, if any, premium, if any, or interest,
the Guarantor hereby agrees to cause any such payment to be made punctually
when and as the same shall become due and payable, whether at maturity, upon
redemption, or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrevocable, and absolute, irrespective of the validity,
regularity, or enforceability of said Security or said Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of said
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to said Security or indebtedness
evidenced thereby, and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in said Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of said
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of the Holders of all of the
Securities then outstanding, be entitled to
B-8
enforce or to receive any payments arising out of or based upon such right of
subrogation until the principal of and premium, if any, and interest on all
Securities shall have been paid in full or payment thereof shall have been
provided for in accordance with said Indenture.
Notwithstanding anything to the contrary contained herein, if following any
payment of principal or interest by the Company on the Securities to the
Holders of the Securities it is determined by a final decision of a court of
competent jurisdiction that such payment shall be avoided by a trustee in
bankruptcy (including any debtor-in-possession) as a preference under 11
U.S.C. Section 547 and such payment is paid by such Holder to such trustee in
bankruptcy, then and to the extent of such repayment, the obligations of the
Guarantor hereunder shall remain in full force and effect.
The Guarantor hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened prior to the
creation and issuance of this Guarantee and to constitute the same as the
legal, valid and binding obligation of the Guarantor enforceable in accordance
with its terms, have been done and performed and have happened in due and
strict compliance with applicable laws.
This Guarantee shall not be valid or become obligatory for any purpose with
respect to a Security until the certificate of authentication on such Security
shall have been signed by the Trustee (or the Authenticating Agent).
This Guarantee shall be governed by the internal laws (as opposed to
conflicts of laws provisions) of the State of Illinois.
All terms used in this Guarantee which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
In Witness Whereof, Ameritech Corporation has caused this Guarantee to be
signed in its corporate name by the facsimile signature of one of its officers
thereunto duly authorized and has caused a facsimile of its corporate seal to
be affixed hereunto or imprinted or otherwise reproduced hereon.
Dated as of: , 19
Ameritech Corporation
By: _________________________________
Authorized Officer
[Seal]
----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT--_________________Custodian__________________
(Cust) (Minor)
-------------------------------------------
Under Uniform Gifts to Minors Act
-------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
B-9
----------------
For Value Received, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
-------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer said Security on the books
of the Company, with full power of substitution in the premises.
Dated:
_____________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
B-10
EXHIBIT C
[FORMS OF CERTIFICATION ]
EXHIBIT C.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities (a) [Not applicable
with respect to a Security owned by a financial institution during the
"restricted period" within the meaning of Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations] are not being acquired by or on behalf
of a United States person or any person inside the United States or, if a
beneficial interest in the Securities is being acquired by or on behalf of a
United States person or any person inside the United States, that 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 which agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code and the regulations thereunder, or (b) are being acquired by a
financial institution within the meaning of Section 1.165-12(c)(1)(V) of such
regulations for purposes of resale, but not for purposes of resale, directly
or indirectly, to a person inside the United States or to a United States
person. If the undersigned is a dealer, the undersigned agrees to obtain a
similar certificate from each person entitled to delivery of any of the above-
captioned Securities in bearer form purchased from it; provided, however, that
if the undersigned has actual knowledge that the information contained in such
a certificate is false, the undersigned will not deliver a Security in
temporary or definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the undersigned.
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 and 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 of such Securities.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: ,
19
[To be dated on or after
, 19
(the date determined as
provided in the Indenture)]
[Name of Person Entitled to Receive
Security]
_____________________________________
(Authorized Signatory)
Name:
Title:
C-1
EXHIBIT C.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND CEDEL S.A. IN CONNECTION
WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY]
CERTIFICATE
----------------
[Insert title or sufficient description of Securities to be delivered]
This is to certify with respect to $principal amount of the above-captioned
Securities (a) 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 (b) 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.
Dated: , 19
[To be dated no earlier than
the Exchange Date]
[Xxxxxx Guaranty Trust Company of
New York, Brussels Office, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By__________________________________
C-2
EXHIBIT C.3
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND CEDEL S.A. TO OBTAIN
INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
----------------
[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.
Dated: , 19
[To be dated on or after the
relevant Interest Payment Date
]
[Xxxxxx Guaranty Trust Company of
New York, Brussels Office, as
Operator of the Euro-clear System]
[CEDEL S.A.]
By__________________________________
C-3
EXHIBIT C.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
----------------
[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, none of the above-captioned
Securities held by you for our account was beneficially owned by a United
States person or, if any of such Securities held by you for our account were
beneficially owned by a United States person, such United States person either
provided an Internal Revenue Service Form W-9 with respect to such interest
payment or certified with respect to such interest payment that it was an
exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United States
Treasury regulations.
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 and 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 able to certify and as to which we understand
interest cannot be credited unless and until we are able so to certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
[To be dated on or after the
15th day before the relevant
Interest Payment Date]
[Name of Person Entitled to Receive
Interest]
_____________________________________
(Authorized Signatory)
Name:
Title:
[If the withholding agent is not a foreign branch of a financial institution
described in Section 871(h)(4)(B) of the Internal Revenue Code of 1986, as
amended, and a United States person, this certificate must be signed under
penalties of perjury.]
C-4
