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Exhibit 4.1
INDENTURE
Among
CROWN CORK & SEAL COMPANY, INC.
as Issuer and Guarantor
and
CROWN CORK & SEAL FINANCE PLC
as Issuer
(with Guarantee of Crown Cork & Seal Company, Inc.)
and
CROWN CORK & SEAL FINANCE S.A.
as Issuer
(with Guarantee of Crown Cork & Seal Company, Inc.)
and
THE BANK OF NEW YORK
as Trustee
Dated as of December 17, 1996
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
(S) 310(a)(1)...................................................................6.9
(a)(2)...................................................................6.9
(a)(3)...................................................................N\A
(a)(4)...................................................................N\A
(a)(5)...................................................................6.9
(b)......................................................................6.8, 6.10
(S) 311(a)......................................................................6.13(a)
(b)......................................................................6.13(b)
(b)(2)...................................................................7.3(a)(2),
...................................................................7.3(b)
(S) 312(a)......................................................................7.1, 7.2(a)
(b)......................................................................7.2(b)
(c)......................................................................7.2(c)
(S) 313(a)......................................................................7.3(a)
(b)......................................................................7.3(b)
(c)......................................................................7.3(a),
7.3(b)
(d)......................................................................7.3(c)
(S) 314(a)......................................................................7.4
(b)......................................................................N\A
(c)(1)...................................................................1.2
(c)(2)...................................................................1.2
(c)(3)...................................................................N\A
(d)......................................................................N\A
(e)......................................................................1.2
(S) 315(a)......................................................................6.1(a)
(b)......................................................................6.2,
(c)......................................................................6.1(b)
7.3(a)(b)
(d)......................................................................6.1(c)
(d)(1)...................................................................6.1(a)(1)
(d)(2)...................................................................6.1(c)(2)
(d)(3)...................................................................6.1(c)(3)
(3)......................................................................5.14
(S) 316(a)(1)...................................................................1.1
(a)(1)(A)................................................................5.2, 5.12
(a)(1)(B)................................................................5.13
(b)......................................................................5.8
3
(S) 317(a)(1)............................................................. 5.3
(a)(2)............................................................. 5.4
(b)................................................................ 10.3
(S) 318(a)................................................................ 1.7
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS 1/
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Page
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PARTIES................................................................... 1
RECITALS.................................................................. 1
ARTICLE I
Definitions and Other
---------------------
Provisions of General Application
---------------------------------
SECTION 1.01. Definitions............................................. 2
SECTION 1.02. Compliance Certificates and
Opinions........................................... 15
SECTION 1.03. Form of Documents Delivered
to Trustee......................................... 16
SECTION 1.04. Acts of Holders......................................... 17
SECTION 1.05. Notices, etc., to Trustee
and Issuers and the Guarantor...................... 18
SECTION 1.06. Notice to Holders; Waiver............................... 18
SECTION 1.07. Conflict with Trust Indenture Act....................... 19
SECTION 1.08. Effect of Headings and Table
of Contents........................................ 19
SECTION 1.09. Successors and Assigns.................................. 19
SECTION 1.10. Severability Clause..................................... 19
SECTION 1.11. Benefits of Indenture................................... 20
SECTION 1.12. Governing Law........................................... 20
SECTION 1.13. Submission to Jurisdiction; Appointment
of Agent for Service of Process......................... 20
SECTION 1.14. Legal Holidays.......................................... 21
SECTION 1.15. Certain Matters Relating
to Currencies........................................... 21
SECTION 1.16. Indenture, Securities and Guarantees
Solely Corporate Obligations............................ 22
SECTION 1.17. Execution in Counterparts............................... 22
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally......................................... 22
SECTION 2.02. Form of Face of Security................................ 23
SECTION 2.03. Form of Reverse of Security............................. 27
SECTION 2.04. Form of Notation of Guarantees.......................... 33
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1/ Note: This table of contents shall not, for any purpose, be deemed to
-
be a part of this Indenture.
Contents, p. 2
Page
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SECTION 2.05. Form of Trustee's Certificate of
Authentication.................................. 34
ARTICLE III
The Securities
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SECTION 3.01. Amount Unlimited; Issuable
in Series.......................................... 35
SECTION 3.02. Denominations........................................ 38
SECTION 3.03. Execution, Authentication, Delivery and
Dating............................................. 39
SECTION 3.04. Temporary Securities................................. 41
SECTION 3.05. Registration, Registration of Transfer
and Exchange....................................... 42
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
Securities......................................... 43
SECTION 3.07. Payment of Interest; Interest Rights
Preserved.......................................... 45
SECTION 3.08. Persons Deemed Owners................................ 46
SECTION 3.09. Cancelation.......................................... 46
SECTION 3.10. Computation of Interest.............................. 47
SECTION 3.11. Global Securities.................................... 47
SECTION 3.12. UK Global Securities................................. 50
SECTION 3.13. Payment To Be in Proper Currency..................... 53
SECTION 3.14. CUSIP Numbers........................................ 54
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of
any Series......................................... 54
SECTION 4.02. Application of Trust Money........................... 58
SECTION 4.03. Satisfaction and Discharge
of Indenture....................................... 59
SECTION 4.04. Reinstatement........................................ 59
ARTICLE V
Remedies
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SECTION 5.01. Events of Default.................................... 60
SECTION 5.02. Acceleration for Maturity; Rescission
and Annulment...................................... 62
SECTION 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee......................... 63
SECTION 5.04. Trustee May File Proofs of Claim..................... 64
SECTION 5.05. Trustee May Enforce Claims Without
Possession of Securities........................... 65
SECTION 5.06. Application of Money Collected....................... 65
Contents, p. 3
Page
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SECTION 5.07. Limitation on Suits.................................. 66
SECTION 5.08. Unconditional Right of Holders to
Receive Principal, Premium and
Interest........................................ 67
SECTION 5.09. Restoration of Rights and Remedies................... 67
SECTION 5.10. Rights and Remedies Cumulative....................... 67
SECTION 5.11. Delay or Omission Not Waiver......................... 68
SECTION 5.12. Control by Holders................................... 68
SECTION 5.13. Waiver of Past Defaults.............................. 68
SECTION 5.14. Undertaking for Costs................................ 69
SECTION 5.15. Waiver of Usury, Stay or Extension
Laws............................................ 69
ARTICLE VI
The Trustee
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SECTION 6.01. Certain Duties and Responsibilities.................. 70
SECTION 6.02. Notice of Defaults................................... 71
SECTION 6.03. Certain Rights of Trustee............................ 72
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities.......................... 73
SECTION 6.05. May Hold Securities.................................. 73
SECTION 6.06. Money Held in Trust.................................. 73
SECTION 6.07. Compensation and Reimbursement....................... 74
SECTION 6.08. Qualification of Trustee;
Conflicting Interests........................... 75
SECTION 6.09. Corporate Trustee Required;
Eligibility..................................... 75
SECTION 6.10. Resignation and Removal; Appointment of
Successor....................................... 75
SECTION 6.11. Acceptance of Appointment
by Successor.................................... 78
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.......................... 79
SECTION 6.13. Preferential Collection of Claims
Against Issurers or the Guarantor............... 80
SECTION 6.14. Appointment of Authenticating Agent.................. 80
ARTICLE VII
Holders' Lists and Reports by
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Trustee and Issuers and the Guarantor
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SECTION 7.01. Issuers and the Guarantor to Furnish
Trustee Names and Addresses of
Holders......................................... 83
SECTION 7.02. Preservation of Information;
Communications to Holders....................... 83
SECTION 7.03. Reports by Trustee................................... 85
SECTION 7.04. Reports by Issuers and the
Guarantor....................................... 85
Contents, p. 4
Page
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ARTICLE VIII
Consolidation, Merger, Conveyance,
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Transfer or Lease
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SECTION 8.01. Company May Consolidate, etc., Only on
Certain Terms.................................. 86
SECTION 8.02 Subsidiary Issuers May Consolidate,
etc., Only on Certain Terms.................... 88
SECTION 8.03. Successor Substituted............................... 91
SECTION 8.04. Assumption by Company of Subsidiary
Issuers' Obligations........................... 92
SECTION 8.05. Indemnification Procedure........................... 93
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent
of Holders..................................... 94
SECTION 9.02. Supplemental Indentures with Consent of
Holders........................................ 96
SECTION 9.03. Execution of Supplemental
Indentures..................................... 98
SECTION 9.04. Effect of Supplemental Indentures................... 98
SECTION 9.05. Conformity with Trust Indenture Act................. 98
SECTION 9.06. Reference in Securities to Supplemental
Indentures..................................... 98
ARTICLE X
Covenants
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SECTION 10.01. Payment of Principal, Premium and
Interest....................................... 99
SECTION 10.02. Maintenance of Office or Agency..................... 99
SECTION 10.03. Money for Security Payments to be Held
in Trust....................................... 100
SECTION 10.04. Corporate Existence................................. 102
SECTION 10.05. Maintenance of Properties........................... 103
SECTION 10.06. Payment of Taxes and Other Claims................... 103
SECTION 10.07. Additional Amounts.................................. 103
SECTION 10.08. Limitations on Liens................................ 105
SECTION 10.09. Limitations on Sale and Leaseback................... 107
SECTION 10.10. Statement by Officers as to Default................. 108
SECTION 10.11. Waiver of Certain Covenants......................... 108
SECTION 10.12. Defeasance of Certain Obligations................... 109
SECTION 10.13. Calculation of Original Issue Discount.............. 111
Contents, p. 5
Page
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ARTICLE XI
Redemption of Securities
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SECTION 11.01. Applicability of Article.......................... 111
SECTION 11.02. Election to Redeem; Notice
to Trustee................................... 111
SECTION 11.03. Selection by Trustee of Securities to
be Redeemed.................................. 111
SECTION 11.04. Notice of Redemption.............................. 112
SECTION 11.05. Deposit of Redemption Price....................... 113
SECTION 11.06. Securities Payable on
Redemption Date.............................. 113
SECTION 11.07. Securities Redeemed in Part....................... 114
SECTION 11.08. Optional Redemption Due to Changes
in Tax Treatement............................ 114
SECTION 11.09. Optional Redemption............................... 116
SECTION 11.10. Conditional Right to Shorten Maturity............. 117
ARTICLE XII
Sinking Funds
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SECTION 12.01. Applicability of Article.......................... 118
SECTION 12.02. Satisfaction of Sinking Fund Payments
with Securities.............................. 118
SECTION 12.03 Redemption of Securities for
Sinking Fund................................. 119
ARTICLE XIII
Guarantees of Securities
------------------------
SECTION 13.01. Guarantees........................................ 119
SECTION 13.02. Execution of Guarantees........................... 121
INDENTURE, dated as of December 17, 1996,
among CROWN CORK & SEAL COMPANY, INC., a Pennsylvania
corporation (the "Company" and, with respect to
Securities (as defined herein) issued by either
Subsidiary Issuer (as defined herein), the
"Guarantor"); CROWN CORK & SEAL FINANCE S.A., a
societe anonyme organized under the laws of the
Republic of France ("Crown France"); CROWN CORK &
SEAL FINANCE PLC, a public limited company organized
under the laws of England and Wales ("Crown UK")
(each of Crown France and Crown UK being a
"Subsidiary Issuer" and, collectively the "Subsidiary
Issuers"); and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee"). The
Subsidiary Issuers and the Company in its capacity as
an issuer of Securities are herein referred to
individually as an "Issuer" and collectively as the
"Issuers".
Each of the Issuers 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 (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
The Guarantor has duly authorized the execution and delivery
of this Indenture to provide for the Guarantees of the Securities provided for
herein.
All things necessary have been done to make this Indenture a
valid agreement of each of the Issuers and the Guarantor, in accordance with its
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities, it is mutually covenanted and
2
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
Definitions and Other Provisions
--------------------------------
of General Application
----------------------
SECTION 1.01. Definitions. For all purposes of this
-----------
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
this Indenture;
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to the Indenture as a whole and not to
any particular Article, Section or other subdivision;
(e) references to the "applicable Issuer" are to the Issuer of
the Securities being described; and
(f) references to "Guarantees" and the "Guarantor" are
operative only where a Subsidiary Issuer is, was or may become the
Issuer of the relevant series of Securities, and only with respect to
such series of Securities.
"Act", when used with respect to any Holder, has
the meaning specified in Section 1.04.
3
"Administrative Action" has the meaning specified
in Section 11.10.
"Additional Amounts" has the meaning specified in
Section 10.07.
"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 terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement Currency" has the meaning specified in
Section 1.18.
"Attributable Debt" with respect to any sale leaseback
transaction restricted by Section 10.09 means the lesser of (i) the total net
amount of rent required to be paid during the remaining base term of the related
lease or until the earliest date on which the lessee may terminate such lease
upon payment of a penalty or a lump-sum termination payment (in which case the
total net rent shall include such penalty or termination payment), discounted at
the weighted average interest rate borne by the Outstanding Securities,
compounded semi-annually, or (ii) the sale price of the property so leased
multiplied by a fraction the numerator of which is the remaining base term of
the related lease (expressed in months) and the denominator of which is the base
term of such lease (expressed in months).
"Authenticating Agent" means any Person authorized
by the Trustee to act on behalf of the Trustee to authenticate Securities.
"Authorized Agent" has the meaning specified in
Section 1.13.
"Authorized Officer" means any person (whether designated by
name or the persons for the time being holding a designated office) appointed by
or pursuant to a Board Resolution for the purpose, or a particular purpose, of
this Indenture, provided that written notice of such appointment shall have been
given to the Trustee.
4
"Bearer Security Depositary" means, with respect to any series
of Securities of Crown UK issuable in whole or in part in the form of one or
more UK Global Securities, the book-entry depositary or its nominee or the
custodian of either, designated by Crown UK in the Bearer Security Depositary
Agreement until a successor depositary shall have become such pursuant to
applicable provisions of the Bearer Security Depositary Agreement, and
thereafter "Bearer Security Depositary" shall mean such successor book-entry
depositary or its nominee or the custodian of either, and if at any time there
is more than one such Person, "Bearer Security Depositary" as used with respect
to the Securities of any series shall mean the Bearer Security Depositary with
respect to the Securities of that series.
"Bearer Security Depositary Agreement" means the Bearer
Security Depositary Agreement dated as of the date of this Indenture between the
Company, Crown UK and The Bank of New York.
"Beneficial Owner" means, with respect to Global Securities or
UK Global Securities, the Person who is the beneficial owner of such Securities
as reflected on the books of the Depositary for such Securities or on the books
of a Person maintaining an account with such Depositary (directly or as an
indirect participant, in accordance with the rules of such Depositary).
"Board of Directors", when used with reference to any of the
Issuers or the Guarantor, means the board of directors (or any duly authorized
committee thereof) of such Issuer or the Guarantor, as the case may be.
"Board Resolution", when used with reference to an Issuer or
the Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Issuer or the Guarantor, as the case may be, to have
been duly adopted by the applicable Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law, regulation or executive order to close.
5
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by any firm of independent public accountants of
recognized national standing selected by the applicable Issuer or the Guarantor.
The term "independent" when used with respect to any specified firm of public
accountants means such a firm which (1) is in fact independent, (2) does not
have any direct financial interest or any material indirect financial interest
in such Issuer or in any other obligor upon the Securities of any series or in
any affiliate of such Issuer or of such other obligor, and (3) is not connected
with such Issuer or such other obligor or any affiliate of such Issuer or of
such other obligor, as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions, but such firm may be
the regular auditors employed by such Issuer or the Guarantor. Whenever it is
herein provided that any Certificate of a Firm of Independent Public Accountants
shall be furnished to the Trustee for Securities of any series, such Certificate
shall state that the signer has read this definition and that the signer is
independent within the meaning hereof.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended, and regulations, rulings and judicial decisions thereunder as
of December 12, 1996.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
6
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third Business Day preceding such Redemption Date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities and (b) all goodwill,
tradenames, trademarks, patents, unamortized debt discount and expense (to the
extent included in said aggregate amount of assets) and other like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the principal office of the
Trustee in The City of New York, in the State of New York at which at any
particular time its corporate trust business shall be administered, which office
at the date of execution of this Indenture is located at 000 Xxxxxxx Xxxxxx,
Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Corporation" means a corporation, association, company, joint
stock company or business trust.
"Defaulted Interest" has the meaning specified in
Section 3.07.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities or UK
Global Securities, a clearing agency registered as such under the Exchange Act,
or any successor thereto, which shall in either case be designated by the
applicable Issuer pursuant to Section 3.01 until a successor Depositary shall
have become such pursuant
7
to the applicable provisions of this Indenture, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any series shall mean the Depositary with respect to the
Securities of that series.
"Discounted Security" means any Security which provides for an
amount (excluding any amounts attributable to accrued but unpaid interest
thereon) less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Dollars" and the sign "$" mean the currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case, as amended from time to time.
"Exempted Indebtedness" means as of any particular time the
sum of (i) all then-outstanding indebtedness for borrowed money of the Company
and Restricted Subsidiaries incurred after the date hereof and secured by any
mortgage, security interest, pledge or lien other than those permitted by
paragraph (a) of Section 10.08, and (ii) all Attributable Debt with respect to
Sale and Leaseback Transactions entered into by the Company and Restricted
Subsidiaries after the date hereof other than those permitted by paragraph (a)
of Section 10.09.
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America or any composite currency
(including, without limitation, the European Currency Unit).
"Funded Debt" means any indebtedness of the Company or a
Restricted Subsidiary for borrowed money having a maturity of more than 12
months from the date such indebtedness was incurred or having a maturity of less
than 12 months but by its terms being renewable or extendable beyond 12 months
from the date such indebtedness was incurred at the option of the obligor.
8
"Global Security" means a Security evidencing all or part of a
series of Securities which the applicable Issuer executed and authenticated and
delivered to the Depositary or pursuant to the Depositary's instructions, and
which the Guarantor executed, as applicable, the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed on, all in accordance with
this Indenture and pursuant to an Issuer Order, which shall be registered in the
name of the Depositary or its nominee and which shall represent the amount of
uncertificated Securities as specified therein.
"Government Obligations" means securities that are (i) direct
obligations of the government which issued the currency in which the Securities
of a particular series are payable or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the government which
issued the currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such currency and are not callable or redeemable at the option of the issuer
thereof.
"Guarantee" means the irrevocable and unconditional guarantee
by the Guarantor of any Security of any series of any Subsidiary Issuer
authenticated and delivered pursuant to this Indenture either (i) if specified
in a Board Resolution of the Guarantor as contemplated by Section 3.01 and
endorsed on such Security or (ii) otherwise applicable pursuant to Article XIII.
"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" means, (i) with respect to Securities of any series
of Crown UK issued in the form of one or more UK Global Securities, the bearer
thereof or its nominee, which shall initially be the Bearer Security Depositary
and (ii) otherwise a Person in whose name a Security is registered in the
Security Register.
"Indemnifiable Transaction" shall have the meaning
specified in Section 8.05.
9
"Indenture" means this instrument as originally executed and
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 3.01.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the applicable
Issuer.
"interest", when used with respect to a Discounted Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Issuer" means (i) any of the Persons named as an "Issuer" in
the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture in respect
of any such Person, and thereafter "Issuer", in respect of such Person, shall
mean such successor Person and (ii) when used with respect to Securities, shall
mean the Issuer of Securities of the relevant series.
"Issuer Request" or "Issuer Order" means, with respect to
Securities of a series, a written request or order signed in the name of the
Issuer or the Guarantor of such Securities by any one of such Issuer's or the
Guarantor's Chairman of the Board, President or a Vice President, and by any one
of such Issuer's or the Guarantor's Treasurer, any Assistant Treasurer,
Secretary or any Assistant Secretary, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in
Section 1.18.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
10
"Officers' Certificate", with respect to the Company means a
certificate signed by the Chairman of the Board, the President, a Vice President
or the Treasurer, and by the Secretary or an Assistant Secretary, of such Issuer
or the Guarantor, as the case may be, or, in the case of Crown UK or Crown
France, any authorized officer or director, and in each case delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for an Issuer or the Guarantor (including in-house counsel) or
the Trustee, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the applicable Issuer or the Guarantor) in
trust or set aside and segregated in trust by the applicable Issuer or
the Guarantor (if such Issuer or the Guarantor shall act as its own or
their own Paying Agent) for the Holders of such Securities; provided
--------
that if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Section 4.03,
as to which the applicable Issuer or the Guarantor has effected
defeasance as provided in Article IV; and
(d) Securities that have been paid pursuant to Section 3.06 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 applicable Issuer;
11
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 as of any date,
(i) Securities owned by any of the Issuers or the Guarantor or any other obligor
upon the Securities or any Affiliate of any of the Issuers or the Guarantor or
such other obligor shall be disregarded and deemed not to be Outstanding, except
that (A) in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which the Trustee actually knows to be so owned shall be so
disregarded and (B) Securities so owned that 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 an Issuer or the Guarantor or any other obligor upon the
Securities or any Affiliate of an Issuer or the Guarantor or such other obligor;
(ii) the principal amount of any Discounted Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration pursuant to Section 5.02; (iii) if the principal amount of a
Security payable at Maturity is to be determined by reference to an index or
indices, the principal amount of such Security that shall be deemed to be
Outstanding shall be the face amount thereof; (iv) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as established as contemplated by Section 3.01;
and (v) the principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall be
the equivalent in Dollars, determined as of such date in the manner established
as contemplated by Section 1.15, of the principal amount of such Security (or,
in the case of a Security described in Clause (ii) or (iii) above, of the amount
determined as provided in such Clause).
"Paying Agent" means any Person authorized by any Issuer to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of such Issuer.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock
12
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"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 3.06 in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Primary Treasury Dealer" has the meaning set
forth in Section 1.01 in the definition of "Reference Treasury Dealer."
"Principal Property" means any single manufacturing or
processing plant or warehouse (excluding any equipment or personalty located
therein), other than any such plant or warehouse or portion thereof that the
Board of Directors of the Company reasonably determines is not of material
importance to the business conducted by the Company and its Subsidiaries as an
entirety.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption established 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 established pursuant
to this Indenture.
"Reference Treasury Dealer" means each of Salomon Brothers
Inc, CS First Boston Corporation, Chase Securities Inc., X.X. Xxxxxx Securities
Inc. and their respective successors; provided, however, that if any of the
-------- -------
foregoing shall cease to be a primary United States government securities dealer
in New York City (a "Primary Treasury Dealer"), the applicable Issuer shall
substitute therefor another Primary Treasury Dealer.
13
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such Redemption Date.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose established as contemplated by Section 3.01.
"Remaining Scheduled Payments" means, with respect to any
Security, the remaining scheduled payments of the principal thereof to be
redeemed and interest thereon that would be due after the related Redemption
Date but for such redemption; provided, however, that, if such Redemption Date
-------- -------
is not an Interest Payment Date with respect to such Security, the amount of the
next succeeding scheduled interest payment thereon will be reduced by the amount
of interest accrued thereon to such Redemption Date.
"Required Currency" has the meaning specified in Section 3.13.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Restricted Subsidiary" means any Subsidiary that owns,
operates or leases one or more Principal Properties.
"Securities" has the meaning specified 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 3.05.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest
14
thereon, means the date specified in such Security as the fixed date on
which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means with respect to the Company each
corporation of which the Company, or the Company and one or more Subsidiaries,
or any one or more Subsidiaries, directly or indirectly own securities entitling
the holders thereof to elect a majority of the directors, either at all times or
so long as there is no default or contingency that permits the holders of any
other class or classes of securities to vote for the election of one or more
directors.
"Subsidiary Assignee" shall have the meaning set forth in
Section 8.02.
"Succession Date" has the meaning specified in Section 11.08.
"Successor" shall have the meaning set forth in Section 8.02.
"Successor Additional Amounts" shall have the meaning set
forth in Section 8.02.
"Tax Event" shall have the meaning set forth in Section 11.10.
"Tax Event Securities" shall have the meaning set forth in
Section 11.10.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"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 such successor Trustee, 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.
15
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05; provided, however, that in the event the
-------- -------
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"UK Global Security" means a Security evidencing all or part
of a series of Securities which Crown UK executed and authenticated and
delivered to the Bearer Security Depositary or pursuant to the Bearer Security
Depositary's instructions, and which the Guarantor executed, as applicable, the
notation of any Guarantees pursuant to Article XIII or any Guarantees endorsed
on, all in accordance with this Indenture and pursuant to an Issuer Order, which
shall be in bearer form and represent the amount of uncertificated Securities as
specified therein.
"Yield to Maturity", when used with respect to any Discounted
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by an Issuer or the Guarantor to the Trustee to take any
action under any provision of this Indenture, such Issuer or the Guarantor shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenants
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant
to Section 10.10) or opinion by or on
16
behalf of an Issuer or the Guarantor 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 1.03. 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, any 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 an Issuer 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
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of such
Issuer or the Guarantor stating that the information with respect to such
factual matters is in the possession of such Issuer or the Guarantor, unless
17
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Securities of any series may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the applicable Issuer and to the
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee, such Issuer and the Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities other than Securities issued
as UK Global Securities shall be proved by
18
the Security Register. The bearer of any Securities issued as a UK Global
Security shall be treated as the owner thereof for all purposes, subject to the
terms of this Indenture.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or Act by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the applicable Issuer or the Guarantor in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.05. Notices, etc., to Trustee and Issuers and the
---------------------------------------------
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 an Issuer or the Guarantor
shall be sufficient for every purpose hereunder if mailed first class,
postage prepaid to, or otherwise made, given, furnished or filed, in
writing, to or with the Trustee at its principal Corporate Trust
Office, Attention: Corporate Trust Administration; or
(b) an Issuer or the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose (except as provided in Sections 5.01(d), 3.12 and
3.13) hereunder if in writing and mailed, first-class postage prepaid, to such
Issuer or Guarantor addressed to such party at the respective addresses of their
principal offices specified in Annex A to this instrument or at any other
address previously furnished in writing to the Trustee.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice to Holders of Securities of any series of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid at the expense of the
applicable Issuer, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders
19
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 1.07. Conflict with Trust Indenture Act. If any
---------------------------------
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act which is required under such Act to be part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The
----------------------------------------
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and
----------------------
agreements in this Indenture by the Issuers or the Guarantor shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 1.10. Severability Clause. In case any provision in
-------------------
this Indenture or in the Securities or the Guarantees 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.
20
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture
---------------------
or in the Securities or the Guarantees, express or implied, shall give to any
Person (other than the parties hereto and their successors hereunder, any Paying
Agent and, the Holders) any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture, the Securities
-------------
and the Guarantees shall be governed by and construed in accordance with the
laws of the State of New York, but without regard to the principles of conflicts
of law thereof, except as may otherwise be required by mandatory provisions of
law and except that all matters governing the authorization and execution of
this Indenture and the Securities by each Subsidiary Issuer will be governed by
and construed in accordance with the laws of the jurisdiction of organization of
such Subsidiary Issuer.
SECTION 1.13. Submission to Jurisdiction; Appointment of Agent
------------------------------------------------
for Service of Process. Each of the Company and each Subsidiary Issuer hereby
----------------------
appoints CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its
authorized agent (the "Authorized Agent") upon which process may be served in
any legal action or proceeding against it with respect to its obligations under
this Indenture or the Securities of any series either as Issuer thereof or
Guarantor, as the case may be, instituted in any Federal or State court in the
Borough of Manhattan, The City of New York by the Trustee or by the Holder of
such Security and each of the Company and each Subsidiary Issuer hereby
irrevocably submits to the non-exclusive jurisdiction of any such court in
respect of any such legal action or proceeding and waives any objection it may
have to the laying of the venue of any such legal action or proceeding. The
Company and the Subsidiary Issuers, jointly, reserve the right to appoint
another Person located or with an office in the Borough of Manhattan, The City
of New York, selected in their discretion, as a successor Authorized Agent, and
upon acceptance of such appointment by such a successor the appointment of the
prior Authorized Agent shall terminate. If for any reason CT Corporation System
ceases to be able to act as the Authorized Agent or to have an address in the
Borough of Manhattan, The City of New York, the Company and the Subsidiary
Issuers, jointly, will appoint a successor Authorized Agent in accordance with
the preceding sentence. Each of the Company and each of the Subsidiary Issuers
further agrees to take any and all action, including the filing of any and all
documents and instruments, as may be
21
necessary to continue such designation and appointment of such agent in full
force and effect until this Indenture has been satisfied and discharged in
accordance with Article IV or Article X hereof. Service of process upon the
Authorized Agent addressed to it at the address set forth above, as such address
may be changed within the Borough of Manhattan, The City of New York by notice
given by the Authorized Agent to the Trustee, together with written notice of
such service mailed or delivered to the Company or the applicable Subsidiary
Issuer shall be deemed, in every respect, effective service of process on the
Company or such Subsidiary Issuer, as the case may be.
SECTION 1.14. Legal Holidays. In any case where any Interest
--------------
Payment Date, Redemption Date or Stated Maturity 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) payment of interest or principal (and
premium, if any) or any Additional Amounts 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, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such next succeeding Business Day.
SECTION 1.15. Certain Matters Relating to Currencies. Whenever
--------------------------------------
any action or Act is to be taken hereunder by the Holders of Securities
denominated in different currencies or currency units, then for purposes of
determining the principal amount of Securities held by such Holders, the
aggregate principal amount of the Securities denominated in a foreign currency
or currency unit shall be deemed to be that amount of Dollars that could be
obtained for such principal amount on the basis of a spot rate of exchange
specified to the Trustee for such series in an Officers' Certificate for such
Foreign Currency or currency unit into Dollars as of the date the taking of such
action or Act by the Holders of the requisite percentage in principal amount of
Securities is evidenced to such Trustee.
The Trustee shall segregate moneys, funds and accounts held by
the Trustee in one currency or currency unit from any moneys, funds or accounts
held in any other currencies or currency units, notwithstanding any provision
22
herein that would otherwise permit the Trustee to commingle such amounts.
SECTION 1.16. Indenture, Securities and Guarantees Solely
-------------------------------------------
Corporate Obligations. No recourse for the payment of the principal of or
---------------------
premium, if any, or interest or any Additional Amounts on any Security, or for
any claim based thereon, and no recourse under or upon any obligation, covenant
or agreement of any Issuer or the Guarantor in this Indenture or in any
supplemental indenture, or under the Guarantees, or in any Security, or because
of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of any Issuer or the Guarantor or of any successor corporation, either
directly or through any Issuer or the Guarantor or any successor corporation,
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 all such liability is hereby expressly waived and released as a
condition of, and as a consideration for the execution of this Indenture and the
Guarantees and the issue of the Securities.
SECTION 1.17. Execution in Counterparts. This Indenture may be
-------------------------
signed in any number of counterparts with the same effect as if the signatures
to each counterpart were upon a single instrument, and all such counterparts
together shall be deemed an original of this Indenture.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities of each series
---------------
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary or
Bearer Security Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as
23
evidenced by their execution of the Securities. If the form of Securities of any
series is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the applicable Issuer and delivered to the Trustee at or
prior to the delivery of the Issuer Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
If Article XIII is to be applicable to Securities of any
series then the Securities of each such series shall bear a notation of the
Guarantees in substantially the form set forth in Section 2.04. For any other
series of Securities, the Guarantees shall be endorsed on the Securities and
shall be substantially in the form established by or pursuant to a Board
Resolution of the Guarantor in accordance with Section 3.01 or one or more
indentures supplemental hereto. Notwithstanding the foregoing, the notation of
the Guarantees to be endorsed on the Securities of any series may have such
appropriate insertions, omissions, substitutions and other corrections from the
forms thereof referred to above 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 delivering the same, in each case as evidenced by such delivery.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Form of Face of Security. [If the Security is a
------------------------ --------------------
Discounted Security, insert--FOR PURPOSES XX XXXXXXX 0000 XX XXX XXXXXX XXXXXX
-----------------------------
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY
IS % OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE IS , 19 .]
24
[If the Security is in registered form, insert -- UNLESS THIS
------------------------------------------------
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
(THE "DEPOSITARY") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO , OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
, HAS AN INTEREST HEREIN.
[If the Security is a Global Security or a UK Global Security,
------------------------------------------------------------
insert-- UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
--------
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
[BEARER SECURITY] DEPOSITARY TO A NOMINEE OF THE [BEARER SECURITY] DEPOSITARY OR
BY A NOMINEE OF THE [BEARER SECURITY] DEPOSITARY TO THE [BEARER SECURITY]
DEPOSITARY OR ANOTHER NOMINEE OF THE [BEARER SECURITY] DEPOSITARY OR BY THE
[BEARER SECURITY] DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR [BEARER
SECURITY] DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR [BEARER SECURITY]
DEPOSITARY.]
No. $
[NAME OF APPLICABLE ISSUER]
----------------------
[Title of Security]
[NAME OF APPLICABLE ISSUER], [a corporation duly organized and
existing under the laws of Pennsylvania] [a societe anonyme organized under the
laws of the Republic of France] [a public limited company organized under the
laws of England and Wales] (herein called the "Issuer", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [ or registered assigns]
[the Holder upon surrender hereof], the principal sum of
MILLION DOLLARS on, at the office or agency of the Issuer referred
to below, [If the Security is to bear interest prior to Maturity, insert--, and
---------------------------------------------------------------
to pay interest thereon from December __, 1996 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on and
25
in each year, commencing , 1997, [at the
rate of 2.00% per annum] [Or, if applicable, insert--at a rate per annum as
---------------------------
hereinafter provided], until the principal hereof is paid or duly provided for
[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 Holder hereof] [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, and at maturity, to the Persons to whom principal is payable.] [Any such
interest not so punctually paid or duly provided for shall 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 not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.]
[If applicable, insert -- If this Security is exchanged for
------------------------
Securities in registered form during the period starting on an Interest Record
Date relating to such registered Securities and ending on the immediately
succeeding Interest Payment Date, the interest due on such Interest Payment Date
shall be payable to the initial Holders of such registered Securities] [If
--
applicable, insert -- Any interest paid on this Security shall be increased to
---------------------
the extent necessary to pay Additional Amounts as set forth in this Security.]
[If the Security is not to bear interest prior to Maturity,
---------------------------------------------------------
insert--The principal of this Security shall not bear interest except in the
--------
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this
26
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 of the Holder hereof. 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 of the Holder hereof.]
Payment of the principal of (and premium, if any) and [If
--
applicable, insert--any such] interest on this Security will be made [If
-------------------- --
applicable, insert -- to the Holder upon presentation] at the [If applicable,
--------------------- --------------
insert Corporate Trust Office of the Trustee in The City of New York otherwise
------ ---------
insert office or agency of the Issuer maintained for that purpose in or at such
------
other office or agency of the Issuer as may be maintained for such purpose], 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] [If applicable,
--------------
insert--provision for payment in Foreign Currency] [If applicable, insert--;
----------------------------------------------------------------------------
provided, however, that payment of interest may be made at the option of the
-----------------
Issuer by check drawn upon any Paying Agent and mailed on or prior to an
Interest Payment Date to the address of the Person entitled thereto as such
address shall appear on the Security Register].
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 duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not
27
be entitled to any benefit under the Indenture, or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed under its corporate seal.
[NAME OF APPLICABLE ISSUER],
By
-----------------------------
Name:
Title:
[SEAL]
[Attest:
--------------------
Authorized Signature]
SECTION 2.03. Form of Reverse of Security. This Security is
---------------------------
one of a duly authorized issue of Securities of the Issuer (herein called the
"Securities"), issued and to be issued in one or more series under an indenture
(herein called the "Indenture") dated as of December __, 1996, among the Issuer,
[If applicable, insert -- Crown Cork & Seal Company Inc. (herein the "Guarantor"
------------------------
which term includes any successor Person under the Indenture referred to
herein)], Crown Cork & Seal Finance PLC [If applicable, delete -- Crown Cork &
------------------------
Seal Finance PLC], Crown Cork & Seal Finance S.A. [If applicable, delete --
------------------------
Crown Cork & Seal Finance S.A.] and , 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,
obligations and immunities thereunder of the Issuer, [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 a series designated on the face hereof [ , limited in aggregate principal
amount to $_______].
28
[If applicable, insert -- The Securities of this series are
------------------------
subject to redemption upon not less than 30 days' notice [by mail, [If
--
applicable, insert -- (1) 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)] at any time ([on or after _________________, 19__],
as a whole or in part, at the election of the Issuer, 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 Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% 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, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to [the Holder hereof on such
date] [the Holders of such Securities, 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 upon not less than 30 days' notice by mail, (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
Issuer, at the Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal amount) set
29
forth in the table below: If redeemed during the 12-month period beginning _____
of the years indicated,
Redemption Price Redemption Price for
for Redemption through Redemption Otherwise
Operation of the than through Operation
Year Sinking Fund of the Sinking Fund
---- ---------------------- -------------------
and thereafter at a Redemption Price equal to ___% 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, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to [the Holder hereof on such date] [the Holders of such
Securities, 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 -- Upon not less than 30 days' notice
------------------------
by mail, the Securities will be redeemable as a whole or in part, at the option
of the Issuer at any time, at a Redemption Price equal to the greater of (i)
100% of the principal amount of the Securities to be redeemed and (ii) the sum
of the present values of the Remaining Scheduled Payments thereon discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate [If applicable, insert -- plus _____
---------------------
basis points], plus in either case accrued interest on the principal amount
being redeemed to the Redemption Date.]
[If applicable, insert -- Notwithstanding the foregoing, the
---------------------
Issuer may not, prior to __________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operations by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer (calculated
in accordance with generally accepted financial practice) of less than % per
annum.]
30
[If applicable, insert--[In addition to its ability to redeem
this Security pursuant to the foregoing, this] [This] Security may be redeemed
by the Issuer on the terms set forth, and as more fully described, in the
Indenture, in certain circumstances where the Issuer would be required to pay
Additional Amounts in respect hereof as a result of a change or amendment of any
law, regulation or published tax ruling of the jurisdiction in which the Issuer
or any Successor is organized, or any political subdivision or taxing authority
thereof or therein, affecting taxation, or change in the official
administration, interpretation or application thereof, in each case occurring
after the issue date hereof or which change in such official administration,
interpretation or application shall not have been available to the public prior
to the issue date hereof, which change shall require the Issuer to pay
Additional Amounts.]
[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] $ [("mandatory sinking fund") and not more
than $_________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Issuer otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made.]
In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof will
be issued [to] [in the name of] the Holder hereof upon the cancellation hereof.
[If applicable, insert -- Upon the occurrence of a Tax Event,
------------------------
the Issuer will have the right to shorten the Stated Maturity of the Securities
to the extent required, in the opinion of a nationally recognized independent
tax counsel, such that, after the shortening of the Stated Maturity, interest
paid on the Securities will be deductible for United States federal income tax
purposes. In the event that the Issuer elects to exercise its rights to shorten
the Stated Maturity of the Securities on the occurrence of a Tax Event, the
Issuer will give a notice of shortened maturity to each Holder of the Securities
stating the new Stated Maturity thereof within 60 days after the occurrence of
such Tax Event.]
[If applicable, insert--The Indenture contains provisions for
-----------------------
defeasance at any time of the entire
31
indebtedness of the series of which this Security is a part or certain
restrictive covenants and Events of Default with respect to this Security, in
each case upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not a Discounted 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.]
[If the Security is a Discounted 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 (i)
-----------------------------------------
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Issuer's
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.)
[If applicable, insert--All payments pursuant to this Security
shall be made without withholding or deduction for, or on account of, any
present or future taxes, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of the jurisdiction (the "applicable
taxing jurisdiction") in which the Issuer or any Successor is organized or
resident (or deemed for tax purposes to be resident) or any political
subdivision or taxing authority thereof or therein, unless such taxes, duties,
assessments or governmental charges are required by the applicable taxing
jurisdiction or any such subdivision or authority to be withheld or deducted. In
that event, the Issuer will pay such Additional Amounts (as defined in the
Indenture) as will result (after deduction of such taxes, duties, assessments or
governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each Holder
of a Security of the amounts which would have been payable in respect of the
Security thereof had no such withholding or deduction been required, subject to
certain exceptions as set forth in Section 10.07 of the Indenture.]
32
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer [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 Issuer [, the Guarantor] and the Trustee with the consent of the Holders of
a majority in aggregate 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 aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the Issuer
[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 or on behalf of 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 hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest [and any Additional Amounts] on this Security at the times,
place, and rate, and in the coin or currency, herein prescribed.
[If the Security is in registered form, insert -- 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 [If applicable,
--------------
insert Corporate Trust Office of the Trustee in The City of New York otherwise
------ ---------
insert office or agency of the Issuer maintained for such purpose in The City of
------
New York or at such other office or agency of the Issuer as may be maintained
for such purpose], duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer 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 authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.]
33
The Securities of this series are issuable [in bearer form
without coupons] [in registered form without coupons] in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are exchangeable for a
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made to the Holders for any
[registration of] transfer or exchange or redemption of Securities, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
[Prior to and at the time of due presentment of this Security
for registration of transfer,] the Issuer, [the Guarantor,] the Trustee and any
agent of the Issuer [, the Guarantor,] or the Trustee may treat the [Person in
whose name this Security is registered] [Holder] as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Issuer, [the
Guarantor,] the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security [if applicable, insert--and
the notation of the Guarantees set forth below] which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2.04 Form of Notation of Guarantees. CROWN CORK & SEAL
-------------------------------
COMPANY, INC., a Pennsylvania corporation (the "Guarantor", which term includes
any Successor under the Indenture (the "Indenture") referred to in the Security
on which this notation is endorsed) has unconditionally guaranteed, pursuant to
the terms of the Guarantees contained in Article XIII of the Indenture, the due
and punctual payment of the principal of, and any premium, interest and
Additional Amounts on, this Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, in accordance with the terms of this Security and
the Indenture.
The obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantees and the Indenture are
expressly set forth in Article XIII of
34
the Indenture, and reference is hereby made to such Article and Indenture for
the precise terms of the Guarantees.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
notation of the Guarantees is endorsed shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized
signatories.
IN WITNESS WHEREOF, the Guarantor has caused this instrument
to be duly executed under its corporate seal.
CROWN CORK & SEAL COMPANY, INC.,
By
---------------------------------
Name:
Title:
[SEAL]
Attest:
--------------------
Authorized Signature
SECTION 2.05 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Truste
By
-----------------------------
Authorized Signatory
Date:
35
ARTICLE III
The Securities
--------------
SECTION 3.01 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 Board Resolutions of the applicable
Issuer and the Guarantor, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of any series:
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series
from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 3.04, 3.05, 3.06, 9.06 or
11.07);
(3) the date or dates on which the principal of,
and any premium on, the Securities of the series is
payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable, any
Securities of that series may be surrendered for exchange, and notices
and demands to or upon the applicable Issuer and the Guarantor, in
respect of the Securities of that series and this Indenture may be
served;
36
(6) the period or periods within which, the price or prices at
which, the currency or currency unit in which, and the terms and
conditions upon which, Securities of the series shall be redeemed, in
whole or in part, either at the option of the applicable Issuer of such
Securities or mandatorily;
(7) the obligation, if any, of the applicable Issuer 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, the
currency or currency unit in which, and the terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(10) any Events of Default in addition to the Events of
Default described in Section 5.01 and any covenants of the applicable
Issuer or the Guarantor with respect to the Securities of the series,
whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(11) if other than Dollars, the currency or currency unit in
which payment of the principal of (and premium, if any) or interest, if
any, on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto;
(12) if the principal of (and premium, if any) and interest,
if any, on the Securities of the series are to be payable, at the
election of the applicable Issuer or a Holder thereof, in a currency or
currency unit other than that in which such Securities are denominated
or stated to be payable, the currency or
37
currency unit in which the principal of (and premium, if any) and
interest, if any, on such Securities as to which such election is made
shall be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the currency or
currency unit in which such Securities are denominated or stated to be
payable and the currency or currency unit in which such Securities are
to be so payable;
(13) if the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a currency or currency
unit other than that in which such Securities are denominated or stated
to be payable or any other index or formula, the manner in which such
amounts shall be determined;
(14) if the Securities will be entitled to the benefits of the
Guarantees afforded by Article XIII of the Indenture or, if not, the
form of the Guarantees to be endorsed on the Securities;
(15) where appropriate, that the Securities of the series, in
whole or in part, shall not be defeasible pursuant to Article IV or
Article X;
(16) if the Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.01;
(17) if the provisions of Section 4.01 relating to the
satisfaction and discharge of Securities of any series shall apply to
the Securities of such series; or if provisions for the satisfaction
and discharge of this Indenture other than as set forth in Section 4.01
shall apply to the Securities of the series;
(18) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities or UK
Global Securities and, in such case, the Depositary or Bearer Security
Depositary for such Global or UK Global Securities, as the case may be;
and whether such Global Securities or UK Global Securities shall be
temporary or permanent; and whether the Securities of the series shall
be issued in bearer form (including Securities registrable as to
principal
38
only) with or without interest coupons and, if applicable, the
exchangeability of such Securities with Securities issued in fully
registered form;
(19) if the Securities of any series may be
converted into or exchanged for any other securities,
the terms and conditions of such conversion or
exchange; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as permitted
by Section 9.01(e)).
All Securities of any one series shall be substantially
identical except as to denomination, and except as may otherwise be provided in
or pursuant to such Board Resolutions or supplemental indentures relating
thereto. The terms of such Securities, as set forth above, may be determined by
the applicable Issuer from time to time if so provided in or established
pursuant to the authority granted in Board Resolutions of the applicable Issuer
and the Guarantor. All Securities of any one series need not be issued at the
same time, and unless otherwise provided, a series may be reopened for issuance
of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to Board Resolutions or supplemental indentures, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the applicable Issuer or the Guarantor, as the case may
be, and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations. Securities of all series
--------------
(other than Securities issued as UK Global Securities) shall be issuable
in registered form without coupons in such denominations as shall be specified
as contemplated by Section 3.01 which may be in Dollars or in any Foreign
Currency. Any Securities issued as UK Global Securities shall be issuable in
bearer form without coupons in such denominations as shall be specified as
contemplated by Section 3.01 which may be in Dollars or in any Foreign Currency.
In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
39
SECTION 3.03. Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the applicable Issuer and any
Guarantees to be endorsed on the Securities shall be executed on behalf of the
Guarantor by the Chairman of the Board, the President or one of the Vice
Presidents of such Issuer or the Guarantor, as the case may be, under the
corporate seal reproduced thereon and, in the case of the Company, attested by
the Secretary or one of the Assistant Secretaries, as the case may be; provided,
--------
however, that any Securities issued hereunder by the Subsidiary Issuers may be
-------
executed by any authorized officer or director thereof and may, but need not, be
signed under a corporate seal. The signature of any of these officers on the
Securities and any Guarantees, as the case may be, may be manual or facsimile.
The notation of any Guarantees, endorsed on the Securities, shall be executed as
provided in Section 13.02.
Securities or any Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
applicable Issuer or the Guarantor, as the case may be, shall bind such Issuer
or 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 or Guarantees or did not hold such offices on the
date of such Securities or Guarantees.
At any time and from time to time after the execution and
delivery of this Indenture, the applicable Issuer may deliver Securities of any
series executed by such Issuer bearing the notation of any Guarantees pursuant
to Article XIII or having any Guarantees endorsed thereon, as applicable, in
each case executed by the Guarantor, to the Trustee for authentication, together
with an Issuer Order for the authentication and delivery of such Securities; and
the Trustee in accordance with such Issuer Order shall authenticate and deliver
such Securities as provided in this Indenture and not otherwise. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions or supplemental indentures as permitted by
Sections 2.01 and 3.01, 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 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
40
(a) if the form of such Securities or any Guarantees has been
established by or pursuant to Board Resolutions or indentures
supplemental hereto as permitted by Section 2.01, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities or any Guarantees have
been established by or pursuant to Board Resolutions or indentures
supplemental hereto as permitted by Section 3.01, that such terms have
been established in conformity with the provisions of this Indenture;
and
(c) that such Securities and any Guarantees thereof, when
authenticated and delivered by the Trustee and issued by the applicable
Issuer and the Guarantor in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of such Issuer and the Guarantor, respectively,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities, the Guarantees and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security or Guarantee 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 duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security or Guarantee has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
41
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute delivery of any Guarantees
endorsed or noted thereon on behalf of the Guarantor. The Guarantor by its
execution of this Indenture hereby authorizes the applicable Subsidiary Issuer,
in the name and on behalf of the Guarantor, to confirm the applicable Guarantees
to the Holder of each Security authenticated and delivered hereunder by its
execution and delivery of each such Security, with such Guarantees noted or
endorsed thereon, authenticated and delivered by the Trustee. When delivered
pursuant to the provisions of Section 3.03 hereof, only Guarantees endorsed or
noted on the Securities shall bind the Guarantor notwithstanding the fact that
the Guarantees do not bear the signature of the Guarantor.
SECTION 3.04. Temporary Securities. Pending the preparation of
---------------------
definitive Securities of any series, the applicable Issuer may execute, and the
Guarantor may execute, as applicable, the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed on, and upon Issuer Order the Trustee
shall authenticate and deliver, temporary Securities of such series 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 and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities or Guarantees or notations of the Guarantees pursuant to Article
XIII, as applicable, may determine, as conclusively evidenced by their execution
of such Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the
applicable Issuer will cause definitive Securities of such 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 such Issuer in a Place of Payment for
such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Issuer shall execute, and
the Guarantor shall execute, as applicable, the notation of any Guarantees
pursuant to Article XIII or the Guarantees endorsed on, and the Trustee shall
authenticate and deliver in exchange
42
therefor a like principal amount of definitive Securities of such series of
authorized denominations. Until so exchanged the temporary Securities of such
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.05. Registration, Registration of Transfer and
------------------------------------------
Exchange. Each of the Issuers shall cause to be kept at the Corporate Trust
---------
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of such Issuer in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, such Issuer shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the applicable Issuer in a Place of
Payment for such series, such Issuer shall execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or the Guarantees endorsed on, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series of any authorized denomination or denominations
and of a like aggregate principal amount and with the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed thereon.
At the option of the Holder, Securities may be exchanged for
other Securities of the same series of any authorized denomination or
denominations and of a like aggregate principal amount and with the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed thereon, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the applicable Issuer shall
execute, and the Guarantor shall execute, as applicable, the notation of any
Guarantees pursuant to Article XIII or the Guarantees endorsed on, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities and any Guarantees issued upon any registration
of transfer or exchange of Securities shall be
43
the valid obligations of the applicable Issuer and the Guarantor, respectively,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange and any Guarantees thereof.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the applicable
Issuer or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to such Issuer and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Securities, but the
applicable Issuer 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 3.04, 9.06 or 11.07 not involving any transfer.
The applicable Issuer shall not be required (a) to issue,
register the transfer of, or exchange, any Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
any Securities of that same series selected for redemption under Section 11.03
and ending at the close of business on the day of such mailing, or (b) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of Securities being redeemed in
part.
The provisions of this Section 3.05 shall not apply to any
Securities issued in bearer form.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen
-------------------------------------
Securities. If any mutilated Security is surrendered to the Trustee, the
-----------
applicable Issuer shall execute and the Guarantors shall execute, as applicable,
the notation of any Guarantees pursuant to Article XIII or any Guarantees
endorsed on, and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same series and of like tenor and principal amount, having
the notation of any Guarantees pursuant to Article XIII or any Guarantees
endorsed thereon, as applicable, and bearing a number not contemporaneously
outstanding.
44
If (i) the applicable Issuer, the Guarantor and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) there is delivered to the applicable Issuer, the Guarantor
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to such Issuer, the
Guarantor and the Trustee that such Security has been acquired by a bona fide
purchaser, such Issuer shall execute, and the Guarantors shall execute, as
applicable, the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed on, and upon such Issuer's written request, the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon, as applicable, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the applicable Issuer or the
Guarantor, each in its discretion, may, instead of issuing a new Security, pay
any such Security.
Upon the issuance of any new Securities under this Section,
the applicable Issuer or the Guarantor, as the case may be, may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security, and any Guarantees
thereof, shall constitute an original additional contractual obligation of the
applicable Issuer and the Guarantor, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities and Guarantees of such series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
45
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security of any series other than series of Securities issued as
UK Global Securities 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 the
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest. Interest on any series of
Securities issued as UK Global Securities which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Holder thereof.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder in
accordance with the preceding paragraph, and such Defaulted Interest may be paid
by the applicable Issuer or the Guarantor, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The applicable Issuer or the Guarantor may elect to make
payment of any Defaulted Interest to the Holders of the Securities of
such series (or their respective Predecessor Securities) 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. Such Issuer or
the Guarantor shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time such Issuer
or 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 such Issuer and the
Guarantor in writing of such Special Record Date and,
46
in the name and at the expense of such Issuer or the Guarantor, the
Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons
entitled thereto pursuant to the first sentence of this Clause (a) and
shall no longer be payable pursuant to the following Clause (b).
(b) The applicable Issuer or the Guarantor may make payment of
any Defaulted Interest on the 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 written notice given by
such Issuer or the Guarantor to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, 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 3.08. Persons Deemed Owners. Prior to and at the time
----------------------
of due presentment of a Security for registration of transfer, the applicable
Issuer, the Guarantor, the Trustee and any agent of such Issuer, the Guarantor
or the Trustee may treat the Holder thereof as the owner of such Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 3.07) interest and any Additional Amounts on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither such Issuer, the Guarantor, the Trustee nor any agent of such
Issuer, the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 3.09. Cancelation. All Securities surrendered for
------------
payment, redemption, registration of
47
transfer or exchange, or for credit against any sinking fund payment, shall be
delivered to the Trustee and shall be promptly canceled by it. Any Issuer or the
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which such Issuer or the
Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be delivered to the applicable Issuer.
SECTION 3.10. Computation of Interest. Except as otherwise
------------------------
specified as contemplated by Section 3.01 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 3.11. Global Securities. If an Issuer shall establish
------------------
pursuant to Section 3.01 that the Securities of a series are to be issued in
whole or in part in the form of one or more Global Securities, then such Issuer
shall execute, and the Guarantor shall execute, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, and the
Trustee shall, in accordance with Section 3.03 and the Issuer Order with respect
to such series, authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the outstanding Securities
of such series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
the Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary". The Trustee shall deal with the
Depositary and its participants as representatives of the Beneficial Owners of
the Global Securities for purposes of exercising the rights of the Holders
hereunder and under any Guarantees and
48
the rights of the Beneficial Owners of the Global Securities shall be limited
to those established by law and agreements between such Beneficial Owners and
the Depositary and its participants. Beneficial Owners shall not be entitled to
certificates for Global Securities as to which they are the Beneficial Owners.
Requests and directions from, and votes of, such representatives shall not be
deemed to be inconsistent if they are made with respect to different Beneficial
Owners.
Except as otherwise provided herein, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
The Beneficial Owner's ownership of Securities shall be recorded on the records
of a participant of the Depositary that maintains such Beneficial Owner's
account for such purpose and the participant's record ownership of such
Securities shall be recorded on the records of the Depositary.
If at any time the Depositary for the Securities of a series,
whether as Holder of a Global Security or the recipient of certificateless
depositary interests in a UK Global Security, notifies the applicable Issuer
that it is unwilling or unable to continue as Depositary for the Securities of
such series or if at any time the Depositary for Securities of a series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and such Issuer shall not have appointed a
successor Depositary with respect to the Securities of such series, such Issuer
will execute, and the Guarantor shall execute, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, and the
Trustee, upon receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or UK Global Security representing such
series in exchange for such Global Security or UK Global Security, having the
notation of any Guarantees pursuant to Article XIII or any Guarantees endorsed
thereon. In
49
addition, if at any time there shall have occurred and be continuing an Event of
Default under this Indenture with respect to the Securities of such series, any
Holder of the Global Security, upon written request given by registered or
certified mail to the applicable Issuer, shall be entitled to receive definitive
Securities in an aggregate principal amount equal to and in exchange for its
respective beneficial interest in the Global Security, executed, authenticated
and delivered as aforesaid.
The applicable Issuer may at any time and in its sole
discretion determine that the Securities of any series issued in the form of one
or more Global Securities shall no longer be represented by such Global Security
or Securities. In such event, such Issuer will execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or any Guarantees endorsed on, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
If specified by the applicable Issuer pursuant to Section 3.01
which respect to Securities of a series, the Depositary for such series of
Securities may surrender a Global Security for such series of Securities in
exchange in whole or in part for Securities of such series in definitive form on
such terms as are acceptable to such Issuer and such Depositary. Thereupon, the
applicable Issuer shall execute, and the Guarantor shall execute, as applicable,
the notation of any Guarantees pursuant to Article XIII or any Guarantees
endorsed on, and the Trustee shall authenticate and deliver, without charge,
(i) to each Person specified by the Depositary a new Security
or Securities of the same series, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security,
having the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed thereon; and
50
(ii) to the Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to the Beneficial Owners thereof, having the
notation of any Guarantees pursuant to Article XIII or any Guarantees
endorsed thereon.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Securities issued in exchange for a Global Security pursuant to this Section
3.11 shall be registered in such names and in such authorized denominations as
the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
SECTION 3.12. UK Global Securities. If Crown UK shall
---------------------
establish pursuant to Section 3.01 that the Securities of a series are to be
issued in whole or in part in the form of one or more UK Global Securities, then
Crown UK shall execute, and the Guarantor shall execute, as applicable, the
notation of any Guarantees pursuant to Article XIII or any Guarantees endorsed
on, and the Trustee shall, in accordance with Section 3.03 and the Issuer Order
with respect to such series, authenticate and deliver one or more UK Global
Securities in temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
outstanding Securities of such series to be represented by one or more UK Global
Securities, (ii) shall be delivered by the Trustee to the Bearer Security
Depositary or pursuant to the Bearer Security Depositary's instruction and (iii)
shall bear a legend substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in definitive form, this
Security may not be transferred except as a whole by the Bearer Security
Depositary to a nominee of the Bearer Security Depositary or by a nominee of the
Bearer Security Depositary to the Bearer Security Depositary or another nominee
of the Bearer Security Depositary or by the Bearer Security Depositary or any
such nominee to a successor Bearer Security Depositary or a nominee of such
successor Bearer Security Depositary". Pursuant to the Bearer Security
Depositary Agreement, the Bearer Security Depositary shall issue a
certificateless depositary interest representing an amount equal to the
aggregate principal
51
amount of the UK Global Security or Securities to the Depositary, which upon its
confirmation that the Bearer Security Depositary or a nominee thereof has
custody of the UK Global Security or Securities and acceptance of such
certificateless depositary interest, shall credit accounts of Persons held with
it with the respective principal amounts of the series of Securities represented
by such UK Global Security or Securities. The Trustee shall deal with the Bearer
Security Depositary for purposes of exercising the rights of the Holders
hereunder and under any Guarantees and the rights of the Beneficial Owners of
the UK Global Securities shall be limited to those established by law and
agreements between such Beneficial Owners and the Depositary and its
participants. The Beneficial Owner's ownership of Securities shall be recorded
on the records of a participant of the Depositary that maintains such Beneficial
Owner's account for such purpose and the participant's record ownership of such
Securities shall be recorded on the records of the Depositary. Dealings between
the Bearer Security Depositary and the Depositary and its participants relating
to exercising the rights of the Holders hereunder and under any Guarantees and
the rights of the Beneficial Owners of the UK Global Securities shall be
governed by the Bearer Security Depositary Agreement. Beneficial Owners shall
not be entitled to certificates for UK Global Securities as to which they are
the Beneficial Owners. Requests and directions from, and votes of, such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Beneficial Owners.
Except as otherwise provided herein, unless and until a UK
Global Security is exchanged in whole or in part for Securities in definitive
form, (i) such UK Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the Bearer
Security Depositary for such series to a nominee of such Bearer Security
Depositary or by a nominee of such Bearer Security Depositary to such Bearer
Security Depositary or another nominee of such Bearer Security Depositary or by
such Bearer Security Depositary or any such nominee to a successor Bearer
Security Depositary for such series or a nominee of such successor Bearer
Security Depositary, and (ii) the certificateless depositary interest in such UK
Global Security held by the Depositary may not be transferred except as a whole
by such Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a
52
successor Depositary or a nominee of such Successor Depositary.
If at any time the Bearer Security Depositary for the
Securities of a series notifies Crown UK that it is unwilling or unable to
continue as Bearer Security Depositary for the Securities of such series and
Crown UK shall not have appointed a successor Bearer Security Depositary with
respect to the Securities of such series, Crown UK will execute, and the
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee, upon receipt of
an Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the UK Global Security or Securities representing such series in exchange for
such UK Global Security or Securities, having the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed thereon. In addition, if at
any time there shall have occurred and be continuing an Event of Default under
this Indenture with respect to the Securities of such series, any Holder of the
UK Global Security, upon written request given by registered or certified mail
to Crown UK shall be entitled to receive definitive Securities in an aggregate
principal amount equal to and in exchange for its respective beneficial interest
in the UK Global Security, executed, authenticated and delivered as aforesaid.
Crown UK may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more UK Global
Securities shall no longer be represented by such UK Global Security or
Securities. In such event, Crown UK will execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or any Guarantees endorsed on, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the UK Global
Security or Securities representing such series in exchange for such UK Global
Security or Securities, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
53
If specified by Crown UK pursuant to Section 3.01 which
respect to Securities of a series, the Bearer Security Depositary for such
series of Securities may surrender a UK Global Security for such series of
Securities in exchange in whole or in part for Securities of such series in
definitive form on such terms as are acceptable to Crown UK, the Bearer Security
Depositary and the Depositary. Thereupon, Crown UK shall execute, and the
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee shall
authenticate and deliver, without charge,
(i) to each Person specified by the Bearer Security Depositary
a new Security or Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
UK Global Security, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon; and
(ii) to the Bearer Security Depositary a new UK Global
Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered UK Global Security and the
aggregate principal amount of Securities delivered to the Beneficial
Owners thereof, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
Upon the exchange of a UK Global Security for Securities in
definitive form, such UK Global Security shall be canceled by the Trustee.
Securities issued in exchange for a UK Global Security pursuant to this Section
3.12 shall be issued only in registered form and shall be registered in such
names and in such authorized denominations as the Bearer Security Depositary for
such UK Global Security, pursuant to instructions from the Depositary and its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
SECTION 3.13. Payment To Be in Proper Currency. Each reference
---------------------------------
in any Securities to any currency shall be of the essence. In the case of any
Securities denominated in any currency (the "Required Currency") other than
Dollars, except as otherwise provided therein, the obligation of the applicable
Issuer and the Guarantor to make any payment of
54
the principal, premium or interest or any Additional Amounts thereon shall not
be discharged or satisfied by any tender by such Issuer or the Guarantor, or
recovery by the Trustee, in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency then due and payable. If
any such tender or recovery is in a currency other than the Required Currency,
the Trustee may take such actions as it considers appropriate to exchange such
currency for the Required Currency. The costs and risks of any such exchange,
including without limitation the risks of delay and exchange rate fluctuation,
shall be borne by the applicable Issuer and the Guarantor, and such Issuer and
the Guarantor shall remain fully liable for any shortfall or delinquency in the
full amount of the Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor. In the event of such a
shortfall, the Trustee shall make payments on a pro rata basis unless otherwise
notified by the Issuer in writing. Each Issuer and the Guarantor hereby waive
any defense of payment based upon any such tender or recovery which is not in
the Required Currency, or which, when exchanged for the Required Currency by the
Trustee, is less than the full amount of Required Currency then due and payable.
SECTION 3.14. CUSIP Numbers. Any Issuer in issuing Securities
--------------
of any series may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
--------
made as to the correctness of such numbers either as printed on such Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on such Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The applicable Issuer will promptly notify the Trustee of any change in
the CUSIP numbers.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of any Series. (a)
-----------------------------------------
The applicable Issuer and the Guarantor shall be deemed to have satisfied and
discharged the entire
55
indebtedness on all the Securities of any particular series (i) that have become
due and payable, or (ii) that by their terms are to become due and payable at
their Stated Maturity within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the Securities of
such series, or (iii) with respect to which this Section 4.01 is specified to be
applicable pursuant to Section 3.01, and, so long as no Event of Default shall
be continuing, the Trustee for the Securities of such series, upon Issuer
Request and at the expense of the applicable Issuer or the Guarantor, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when:
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) any Securities and
coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.06, (ii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption Date
and (iii) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by such Issuer or the Guarantor
and thereafter repaid to such Issuer or the Guarantor, as the
case may be, or discharged from such trust, as provided in the
last paragraph of Section 10.03) have been delivered to such
Trustee for cancellation; or
(B) with respect to all Outstanding Securities of
such series described in (A) above (and, in the case of (i) or
(ii) below, any coupons appertaining thereto) not theretofore
so delivered to the Trustee for the Securities of such series
for cancellation:
(i) such Issuer or the Guarantor has
deposited or caused to be deposited with such Trustee
as trust funds in trust an amount in the currency or
currency unit in which the Securities of such series
are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such
56
series), sufficient to pay and discharge the entire
indebtedness on all such Outstanding Securities of
such series and any related coupons for unpaid
principal (and premium, if any) and interest, if any,
to the date of such deposit (in the case of
Securities which have become due and payable) or to
the Stated Maturity or any Redemption Date as
contemplated by Section 4.02, as the case may be; or
(ii) such Issuer or the Guarantor has
deposited or caused to be deposited with such Trustee
as obligations in trust such amount of Government
Obligations denominated in the Required Currency as
will, as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain
income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Securities of such series and any
related coupons for unpaid principal (and premium, if
any) and interest, if any, to the date of such
deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or any
Redemption Date as contemplated by Section 4.02, as
the case may be; or
(iii) such Issuer or the Guarantor has
deposited or caused to be deposited with such Trustee
in trust an amount equal to the amount referred to in
clause (i) or (ii) in any combination of currency or
currency unit or Government Obligations;
(2) such Issuer or the Guarantor has paid or caused to be paid
all other sums payable with respect to the Securities of such series
and any related coupons;
(3) such Issuer or the Guarantor has delivered to such Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and
57
discharge of the entire indebtedness on all Securities of such series
and any related coupons have been complied with; and
(4) the applicable Issuer or the Guarantor, as the case may
be, shall have delivered to the Trustee, not later than the date of
such deposit, an Opinion of Counsel stating that the Holders of the
Securities of all series will not recognize gain or loss for Federal
income tax purposes or be subject to any taxes or recognize gain or
loss for income tax purposes in the jurisdictions in which such Issuer
is organized, resident or carries on a business as a result of such
deposit and defeasance and will be subject to Federal income tax and
income taxes, capital and other taxes, including withholding taxes in
such jurisdictions 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.
(b) Upon the satisfaction of the conditions set forth in this
Section 4.01 with respect to all the Securities of a series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture and any Guarantees, shall no longer be
binding upon, or applicable to, the applicable Issuer and the Guarantor, and the
Holders of the Securities of such series and any related coupons shall look for
payment only to the funds or obligations deposited with the Trustee pursuant to
Section 4.01(a)(1)(B); provided, however, that in no event shall the applicable
-------- -------
Issuer and the Guarantor be discharged from (i) any payment obligations in
respect of Securities of such series and any related coupons which are deemed
not to be Outstanding under clause (c) of the definition thereof if such
obligations continue to be valid obligations of the applicable Issuer under
applicable law, (ii) any obligations under Sections 4.02(b), 6.07, 6.10 and
10.12 and (iii) any obligations under Sections 3.05 and 3.06 (except that
Securities of such series issued upon registration of transfer or exchange or in
lieu of mutilated, destroyed, lost or stolen Securities and any related coupons
shall not be obligations of the applicable Issuer and the Guarantor) and
Sections 3.13, 7.01 and 10.02; and provided further, that in the event a
----------------
petition for relief under the Bankruptcy Act of 1978 or Title 11 of the United
States Code or a successor statute is filed and not discharged with respect to
the applicable Issuer or the Guarantor within 91 days after the deposit,
58
the entire indebtedness on all Securities of such series and any related coupons
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the applicable Issuer or
the Guarantor, as the case may be, upon Issuer Request.
SECTION 4.02. Application of Trust Money. (a) All money and
---------------------------
obligations deposited with the Trustee for any series of Securities pursuant to
Section 4.01 and Section 10.12 shall be held irrevocably in trust and shall be
made under the terms of an escrow trust agreement in form satisfactory to such
Trustee. Such money and obligations shall be applied by such Trustee, in
accordance with the provisions of the Securities, any coupons, this Indenture
and such escrow trust agreement, to the payment, either directly or through any
Paying Agent (including the applicable Issuer or the Guarantor acting as its own
Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of
the principal of (and premium, if any) and interest, if any, on the Securities
for the payment of which such money and obligations have been deposited with
such Trustee. If Securities of any series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provision or in
accordance with any mandatory sinking fund requirement, the applicable Issuer or
the Guarantor shall make such arrangements as are satisfactory to the Trustee
for any series of Securities for the giving of notice of redemption by such
Trustee in the name, and at the expense, of the applicable Issuer or the
Guarantor.
(b) The applicable Issuer or the Guarantor shall pay and shall
indemnify the Trustee for any series of Securities against any tax, fee or other
charge imposed on or assessed against Government Obligations deposited pursuant
to Section 4.01 or the interest and principal received in respect of such
Government Obligations other than any such tax, fee or other charge which by law
is payable by or on behalf of Holders. The obligation of the applicable Issuer
and the Guarantor under this Section 4.02(b) shall be deemed to be an obligation
of the applicable Issuer and the Guarantor under Section 6.07(b).
(c) Anything in this Article IV to the contrary
notwithstanding, the Trustee for any series of Securities shall deliver or pay
to the applicable Issuer or the Guarantor, as the case may be, from time to time
upon Issuer Request any money or Government Obligations held by it as
59
provided in Section 4.01 which, as expressed in a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, are in excess of the
amount thereof which would then have been required to be deposited for the
purpose for which such money or Government Obligations were deposited or
received provided such delivery can be made without liquidating any Government
Obligations.
SECTION 4.03. Satisfaction and Discharge of Indenture. Upon
----------------------------------------
compliance by the applicable Issuer or the Guarantor with the provisions of
Section 4.01 as to the satisfaction and discharge of each series of Securities
issued hereunder, and if the applicable Issuer or the Guarantor has paid or
caused to be paid all other sums payable under this Indenture, this Indenture
shall cease to be of any further effect (except as otherwise provided herein).
Upon Issuer Request and receipt of an Opinion of Counsel and an Officers'
Certificate complying with the provisions of Section 1.02, the Trustees for all
series of Securities (at the expense of the applicable Issuer or the Guarantor)
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of any Issuer or the Guarantor under Sections 3.04,
3.05, 3.06, 4.02(b), 6.07, 6.10, 6.14, 7.01, 10.02 and 10.12 and the obligations
of the Trustee for any series of Securities under Section 4.02 shall survive.
SECTION 4.04. Reinstatement. If the Trustee for any series of
--------------
Securities is unable to apply any of the amounts (for purposes of this Section
4.04, "Amounts") or Government Obligations, as the case may be, described in
Section 4.01(a)(1)(B)(i) or (ii), respectively, in accordance with the
provisions of Section 4.01 by reason of any legal proceeding or any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the applicable Issuer's and the
Guarantor's obligations under this Indenture and the Securities of such series
and the coupons, if any, appertaining thereto shall be revived and reinstated as
though no deposit had occurred pursuant to Section 4.01 until such time as the
Trustee for such series is permitted to apply all such Amounts or Government
Obligations, as the case may be, in accordance with the provisions of Section
4.01; provided, however, that if, due to the
-------- -------
60
reinstatement of its rights or obligations hereunder, the applicable Issuer or
the Guarantor has made any payment of principal of (or premium, if any) or
interest, if any, on such Securities or coupons, such Issuer or the Guarantor,
as the case may be, shall be subrogated to the rights of the Holders of such
Securities or coupons to receive payment from such Amounts or Government
Obligations, as the case may be, held by the Trustee for such series.
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. "Event of Default", wherever
------------------
used herein with respect to Securities of any series of an Issuer or any
Guarantees thereof, 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), unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(a) default in the payment of any interest on any Security of
such series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(b) default in the payment of the principal of (or
premium, if any, on) any Security of such series at its
Maturity; or
(c) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of
that series; or
(d) default in the performance, or breach, of any covenant or
agreement of such Issuer or the Guarantor in this Indenture with
respect to the Securities of that series (other than a default in the
performance, or a breach, of a covenant or warranty which is
specifically dealt with elsewhere in this Section or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other
61
than such series), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to such Issuer and the Guarantor by the Trustee or to
such Issuer, the Guarantor and the Trustee by the Holders of at least
25% in aggregate principal amount of the Outstanding Securities of such
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 (A) a decree or order for relief in respect of the applicable Issuer
or the Guarantor in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
or (B) a decree or order adjudging such Issuer 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 such Issuer or the Guarantor under any applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Issuer or the Guarantor
or of any substantial part of such Issuer's or the Guarantor's
property, or ordering the winding up or liquidation of such Issuer's or
the Guarantor's 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 60 consecutive days; or
(f) the commencement by the applicable Issuer or the Guarantor
of a voluntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
such Issuer or the Guarantor to the entry of a decree or order for
relief in respect of it in an involuntary case or proceeding under any
applicable 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 such Issuer or the Guarantor of
a petition or answer or consent seeking reorganization or relief under
any applicable law, or the consent by such Issuer or the Guarantor to
the filing of such petition or the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
62
or similar official of it or of any substantial part of its property,
or the making by such Issuer or the Guarantor of an assignment for the
benefit of creditors, or the admission by such Issuer or the Guarantor
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by such Issuer or the Guarantor
in furtherance of any such action; or
(g) any other Event of Default provided with
respect to Securities of that series.
SECTION 5.02. Acceleration of Maturity; Rescission and
----------------------------------------
Annulment. If an Event of Default with respect to the Securities of any series
----------
of any Issuer at the time Outstanding occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such series of such Issuer
may, and the Trustee upon the request of the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of such series of such
Issuer shall, declare the principal amount of all the Securities of that series
of such Issuer (or, if the Securities of such series are Discounted Securities,
such portion of the principal amount as may be specified in the terms of that
series), together with any accrued interest, to be due and payable immediately,
by a notice in writing to such Issuer 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. If an Event of
Default specified in Section 5.01(e) or (f) occurs and is continuing, then the
principal of all the Securities of that series of the applicable Issuer,
together with any accrued interest, shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such 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 such series, by written notice to the
applicable Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if:
63
(i) such Issuer or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay:
(A) all overdue interest on all Securities of
such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and
counsel; and
(ii) all Events of Default with respect to Securities of such
series, other than the non-payment of principal of Securities of such
series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee. Each of the Issuers and the Guarantor covenants that if:
-----------------------
(a) default is made by such Issuer in the payment of any
interest on any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made by such Issuer in the payment
of principal of (or premium, if any, on) any Security
at the Maturity thereof,
such Issuer or the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest,
64
with interest upon the overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If such Issuer 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 and may prosecute such proceeding to judgment or final
decree, and may enforce the same against such Issuer or the Guarantor or any
other obligor upon the Securities and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of such Issuer or
the Guarantor or any other obligor upon the 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 by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement for 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 5.04. 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 an Issuer or the Guarantor or any other obligor upon the
Securities or the property of such Issuer or the Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of such 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 such Issuer 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 interest owing
65
and unpaid in respect of such Securities and to file such other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any money or other
property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay 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 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
-----------
Securities or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 5.06. 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
66
of such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the
Trustee under Section 6.07;
Second: to the payment of the amounts then due and unpaid
upon the Securities for principal (and premium, if any) and interest,
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 for
principal (and premium, if any) and interest; and
Third: the balance, if any, to the applicable Issuer, to the
Guarantor or to any other Person or Persons entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Securities
--------------------
of any series of an Issuer 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 such series;
(b) the Holders of not less than 25% in principal amount for
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee 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
75
(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 such
series;
it being understood and intended that no one or more 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
-----------------------------------------
Principal, Premium and Interest. Notwithstanding any other provision in this
--------------------------------
Indenture, the Holder of any Security shall have the right on the terms stated
herein, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 3.07) interest on such Security
on the respective Stated Maturities expressed in such Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the
-----------------------------------
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the applicable Issuer, the Guarantor,
the Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
-------------------------------
provided in Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Trustee and the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The
76
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 5.11. Delay or Omission Not Waiver. No delay or
-----------------------------
omission of the Trustee or of any Holder of any Security 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 the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. 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; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less
------------------------
than a majority in principal amount of the Outstanding Securities of any series
of an Issuer may on behalf of the Holders of all the Securities of such series
waive any past default hereunder and its consequences, except a default
(a) in the payment of the principal of (or
premium, if any) or interest on any Security of such
series or any Additional Amounts payable in respect
thereof, or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
77
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 5.14. Undertaking for Costs. All parties to this
---------------------
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the 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, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the respective
Maturity or Stated Maturity expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. Each of
----------------------------------------
the Issuers 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 usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Issuers 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 had been enacted.
78
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture or the
Trust Indenture Act, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection (c) shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in
79
good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any
series, determined as provided in Section 5.12, relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. 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 by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register, notice of
such default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Security of
such series or in the payment of any sinking fund installment with respect to
Securities, the Trustee shall be protected in withholding such notice if and so
long as a trust committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any default of the character
specified in Section 5.01(d) no such notice to Holders shall be given until at
least 60 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.
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SECTION 6.03. Certain Rights of Trustee. Subject to the
--------------------------
provisions of Section 6.01:
(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, 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 an Issuer or the Guarantor
mentioned herein shall be sufficiently evidenced by an Issuer Request
or Issuer Order and any resolution of the Board of Directors of such
Issuer or the Guarantor may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate and Opinion of Counsel;
(d) the Trustee may consult with counsel of its selection 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 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,
81
order, bond, debenture, note, 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 applicable Issuer and 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
(h) the Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities of the
series to which such default applies and this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of
-------------------------------------------
Securities. The recitals contained herein, and in the Securities, except the
-----------
Trustee's certificates of authentication, shall be taken as the statements of
the Issuers or the Guarantor, as the case may be, 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 the Guarantees. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by any of
the Issuers or the Guarantor of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any
--------------------
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Trustee, any of the Issuers or the Guarantor, in its individual or
any other capacity, may become the owner or pledgee of Securities, and, subject
to Sections 6.08 and 6.13, may otherwise deal with each of the Issuers and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee
--------------------
in trust hereunder need not be segregated from
82
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 in writing with the applicable Issuer or the Guarantor, as the case may
be.
SECTION 6.07. Compensation and Reimbursement. Each of the
-------------------------------
Issuers and the Guarantor agrees:
(a) to pay to the Trustee from time to time such compensation
as shall be agreed in writing with the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) 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 each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance
or administration of this trust, 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(e) or Section
501(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended, to the extent
permitted by applicable law, to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
83
SECTION 6.08. Qualification of Trustee; Conflicting Interests.
------------------------------------------------
The Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act during the period of time required thereby. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to
in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In
determining whether the Trustee has a conflicting interest as defined in Section
310(b) of the Trust Indenture Act with respect to the securities of any series,
there shall be excluded securities of any particular series of securities other
than that series.
SECTION 6.09. Corporate Trustee Required; Eligibility. There
----------------------------------------
shall at all times be a Trustee hereunder with respect to the Securities of each
series of each Issuer, which may be Trustee hereunder for Securities of one or
more series and 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, and
subject to supervision or examination by Federal or State authority, having a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor upon the Securities or a
Person directly or indirectly controlling, controlled by, or under common
control with such obligor shall serve as Trustee upon the Securities. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of
---------------------------------------
Successor. (a) No resignation or removal of the Trustee and no appointment of a
----------
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series of an Issuer by giving written notice thereof
to such Issuer and the
84
Guarantor. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
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, subject to Section 6.09.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by an Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the applicable Issuer and the Guarantor. If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30
days after the delivery of such Act to the Trustee, the Trustee being removed
may petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series, subject to
Section 6.09.
(d) If at any time:
(1) the Trustee for a series of Securities shall fail to
comply with Section 310(b) of the Trust Indenture Act pursuant
to Section 6.08 hereof after written request therefor by the
applicable Issuer or the Guarantor or by any Holder who has
been a bona fide Holder of such Security for at least six
months unless the Trustee's duty to resign is stayed in
accordance with Section 310(b) of the Trust Indenture Act, or
(2) the Trustee for a series of Securities shall cease to
be eligible under Section 6.09 and shall fail to resign after
written request therefor by the applicable Issuer or the
Guarantor or by any Holder who has been a bona fide Holder of
such Security for at least six months, or
(3) the Trustee for a series of Securities 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,
85
then, in any case, (i) the applicable Issuer or the Guarantor by a Board
Resolution may remove such Trustee with respect to all Securities, or (ii)
subject to Section 5.14, the Holder of any such Security who has been a bona
fide Holder of such 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.
(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 any one or more series of an
Issuer, such Issuer and the Guarantor, by Board Resolutions, shall promptly
appoint a successor Trustee with respect to the Securities of such series and
shall comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series of an
Issuer shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to such Issuer and
the 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 6.11, become the successor Trustee with
respect to the Securities of such series of such Issuer and to that extent
supersede the successor Trustee appointed by such Issuer and the Guarantor. If
no successor Trustee with respect to the Securities of any series of any Issuer
shall have been so appointed by such Issuer and the Guarantor or the Holders of
such Securities and accepted appointment in the manner required by Section 6.11,
the Holder of any Security of such series who has been a bona fide Holder for at
least six months may, subject to Section 5.14, 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
of such Issuer, subject to Section 6.09.
(f) The applicable Issuer shall give notice of each
resignation and each removal of the Trustee with respect to the Securities of
any series of such Issuer and each appointment of a successor Trustee with
respect to the Securities of any series of such Issuer by mailing written notice
of such event by first-class mail, postage prepaid,
86
to the Holders of Securities of such series as their names and addresses appear
in the Security Register. 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 6.11. Acceptance of Appointment by Successor. (a) In
---------------------------------------
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee appointed hereunder shall execute,
acknowledge and deliver to each of the Issuers and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
any of the Issuers 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, trusts and duties of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series of
one or more Issuers, the applicable Issuer, the Guarantor, the retiring Trustee
and each successor Trustee with respect to the Securities of one or more series
of such Issuer shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
87
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trust 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 applicable Issuer, 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.
(c) Upon request of any such successor Trustee, the applicable
Issuer 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, trusts and duties referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article, including, without limitation, under Section 6.09.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
-----------------------------------------------
to Business. Any corporation into which the Trustee may be merged or converted
------------
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
--------
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities 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
88
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against
-----------------------------------------
Issuers or the Guarantor. The Trustee shall comply with Section 311(a) of the
-------------------------
Trust Indenture Act, excluding any creditor relationship listed in Section
311(b) of that Act. If the Trustee shall resign or be removed as Trustee, it
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
SECTION 6.14. Appointment of Authenticating Agent. At any time
------------------------------------
when any of the Securities remain Outstanding the Trustee, with the consent of
the applicable Issuer or Issuers and the Guarantor, may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
of such Issuer or Issuers which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.06, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
applicable Issuer or Issuers 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 purpose 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
89
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
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 the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, to the applicable Issuer or Issuers and
to the Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent, to the applicable Issuer or Issuers and to 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 each of the applicable Issuers and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities 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 Issuers and the Guarantor agree to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the
90
Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
--------------------------------
As Trustee
By
------------------------------
As Authenticating Agent
By
------------------------------
Authorized Officer
91
ARTICLE VII
Holders' Lists and Reports by Trustee
-------------------------------------
and Issuers and the Guarantor
-----------------------------
SECTION 7.01. Issuers and the Guarantor to Furnish Trustee
--------------------------------------------
Names and Addresses of Holders. Each of the Issuers and the Guarantor will
-------------------------------
furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than May 15 and November 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Outstanding Securities of
each series of the applicable Issuer as of the preceding April 1 or
October 1, as the case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the applicable Issuer or the Guarantor,
as the case may be, of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
-------- -------
Registrar, no such list need be furnished.
SECTION 7.02. 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 contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar or Paying Agent (if so acting). The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) If three or more Holders (hereinafter 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 with respect
to their rights under this Indenture or under the Securities and the Guarantees
and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit,
92
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.02(a), or
(2) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.02(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 whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 7.02(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 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 interests of the Holders
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 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, by receiving and holding the
same, agrees with each of the Issuers, the Guarantor and the Trustee that none
of the Issuers, the
93
Guarantor nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 7.02(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 7.02(b).
SECTION 7.03. Reports by Trustee. Within 60 days after May 15
-------------------
of each year commencing with the year following the first issuance of
Securities, the Trustee shall transmit by mail to all Holders of the Securities
of each outstanding series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Securities, the Trustee shall also comply with
Sections 313(b) and 313(c) of the Trust Indenture Act. At any time a report is
mailed to the Holders of any particular series of Securities, a copy of such
report shall be filed with the Commission and with each securities exchange, if
any, on which the Securities of such series are listed. With respect to each
series of Securities, the applicable Issuer will promptly notify the Trustee
when such series of Securities is listed on any securities exchange.
SECTION 7.04. Reports by Issuers and the Guarantor. Each of
-------------------------------------
the Issuers and the Guarantor shall file such annual and/or periodic reports and
certificates with the Trustee and/or with the Commission and/or with the Holders
of each series of Securities as are required by the provisions of Section 314(a)
of the Trust Indenture Act. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including any
Issuer's and the Guarantor's compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers' Certificates).
94
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, etc., Only on Certain
----------------------------------------------
Terms. The Company shall not consolidate with or merge into any other Person or
------
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) any Person formed by such consolidation or into which the
Company is merged or to whom the Company has conveyed, transferred or
leased its properties and assets substantially as an entirety is a
corporation, partnership or trust or other entity organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such Person expressly assumes
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 any premium and interest on all the
Securities of the Company and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed (including the performance or observance of the
Guarantees);
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing;
(3) the Company shall expressly agree by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, (i) to immediately indemnify (pursuant to
the indemnification procedure described in Section 8.05) the Holder of
each Security against (A) any tax, assessment or governmental charge
imposed on such Holder or required to be withheld or deducted from any
payment to such Holder (including any governmental charge or
withholding attributable to the Company's indemnifying such Holder) as
a consequence of such consolidation, merger, conveyance, transfer or
lease and (B) any other tax costs or other tax expenses imposed on such
Holder as a result of the act of such consolidation, merger,
conveyance, transfer or lease
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(except that if the Company or such Person delivers by the date of any
such transaction an opinion of an independent counsel or a tax
consultant of recognized standing that the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result
of such transaction, a Holder will have such rights to indemnification
only if and when gain for U.S. federal income tax purposes is actually
imposed on such Holder) and (ii) that all payments pursuant to the
Securities in respect of the principal of and any premium and interest
on the Securities, as the case may be, shall be made without
withholding or deduction for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the jurisdiction of organization
of such Person or any political subdivision or taxing authority thereof
or therein, unless such taxes, duties, assessments or governmental
charges are required by such jurisdiction or any such subdivision or
authority to be withheld or deducted, in which case such Person will
pay such additional amounts of, or in respect of, principal and any
premium and interest as will result (after deduction of such taxes,
duties, assessments or governmental charges and any additional taxes,
duties, assessments or governmental charges payable in respect of such)
in the payment to each Holder of a Security of the amounts which would
have been payable pursuant to the Securities had no such withholding or
deduction been required, subject to the same exceptions as would apply
with respect to the payment by such Subsidiary Issuer of Additional
Amounts in respect of the Securities;
(4) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, any Principal Property of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance that would not be permitted by this
Indenture, such Person shall take such steps as shall be necessary
effectively to secure the Securities of the Company and of the
Subsidiary Issuers equally and ratably with (or prior to) all
indebtedness secured thereby; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is
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required in connection with such transaction, such supplemental
indenture, comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 8.02. Subsidiary Issuers May Consolidate, etc., Only
----------------------------------------------
on Certain Terms. (a) Each Subsidiary Issuer shall not consolidate with or merge
-----------------
into any other Person, or convey, transfer or lease its properties and assets
substantially as any entirety to any Person, unless:
(1) any Person formed by such consolidation or into which the
applicable Subsidiary Issuer is merged or to whom such Subsidiary
Issuer has conveyed, transferred or leased its properties and assets
substantially as an entirety (a "Successor") is a corporation,
partnership or trust or other entity organized and validly existing
under the laws of the jurisdiction of organization of such Person, and
expressly assumes 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 any premium and interest
on all the Securities of such Subsidiary Issuer and the performance or
observance of every covenant of this Indenture on the part of such
Subsidiary Issuer to be performed or observed (including any obligation
to pay any Additional Amounts);
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing;
(3) any such Person shall expressly agree, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, (i) to immediately indemnify (pursuant to
the indemnification procedure described in Section 8.05) the Holder of
each Security against (A) any tax, assessment or governmental charge
imposed on such Holder or required to be withheld or deducted from any
payment to such Holder (including any governmental charge or
withholding attributable to such Person's indemnifying such Holder) as
a consequence of such consolidation, merger, conveyance, transfer or
lease,
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and (B) any other tax costs or other tax expenses of the act of
such consolidation, merger, conveyance, transfer or lease (except that
if the Company or any such Person delivers by the date of any such
transaction an opinion of an independent counsel or a tax consultant of
recognized standing that the Holders will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such
transaction, a Holder will have such rights to indemnification only if
and when gain for U.S. federal income tax purposes is actually imposed
on such Holder) and (ii) that all payments pursuant to the Securities
in respect of the principal of and any premium and interest on such
Securities, as the case may be, shall be made without withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed or
levied by or on behalf of the jurisdiction of organization of such
Person or any political subdivision or taxing authority thereof or
therein, unless such taxes, duties, assessments or governmental charges
are required by such jurisdiction or any such subdivision or authority
to be withheld or deducted, in which case such Person will pay by way
of additional interest such additional amounts of, or in respect of,
principal and any premium and interest ("Successor Additional Amounts")
as will result (after deduction of such taxes, duties, assessments or
governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each
Holder of a Security of the amounts which would have been payable
pursuant to the Securities had no such withholding or deduction been
required, except that no Successor Additional Amounts shall be so
payable for or on account of:
(A) any tax, duty, levy, assessment or other governmental
charge which would not have been imposed but for the fact that such
Holder: (i) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, the jurisdiction of organization of such Successor or any
of its territories or any political subdivision thereof or otherwise
had some connection with such jurisdiction other than the mere
ownership of, or receipt of payment under, such Security; (ii)
presented (if presentation is required) such Security for payment in
such jurisdiction or any of its
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territories or any political subdivision thereof, unless such Security
could not have been presented for payment elsewhere; or (iii) presented
(if presentation is required) such Security more than thirty (30) days
after the date on which the payment in respect of such Security first
became due and payable or provided for, whichever is later, except to
the extent that the Holder would have been entitled to such Successor
Additional Amounts if it had presented such Security for payment on any
day within such period of thirty (30) days;
(B) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge which is
payable otherwise than by withholding or deduction from payments of (or
in respect of) principal of or any premium or interest on, such
Securities;
(D) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by the Holder or
the beneficial owner of the Security with a request of such Subsidiary
Issuer or the Successor addressed to the Holder (i) to provide
information concerning the nationality, residence or identity of the
Holder or such beneficial owner or (ii) to make any declaration or
other similar claim or satisfy any information or reporting
requirement, which, in the case of (i) or (ii), is required or imposed
by statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition or exemption from all or part of such
tax, assessment or other governmental charge; or
(E) any combination of items (A), (B), (C)
and (D);
nor shall Successor Additional Amounts be paid with respect to any payment of
the principal of or any premium or interest on any such Security to any Holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the
jurisdiction of organization of such Person (or any political subdivision or
taxing authority thereof or therein) to be included in the income
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for tax purposes of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to such Successor Additional Amounts had it been the Holder of the
Security; and
(4) such Subsidiary Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
(b) A Subsidiary Issuer may assign its obligations under any
series of Securities to any other Subsidiary (the "Subsidiary Assignee") and
such Subsidiary Assignee shall be treated as the Successor to such Subsidiary
Issuer with respect to such series of Securities, provided that the conditions
set forth in Section 8.02(a) that would apply to the merger of such Subsidiary
Issuer into such Subsidiary Assignee are satisfied.
SECTION 8.03. Successor Substituted. (a) Upon any
----------------------
consolidation of an Issuer or the Guarantor with, or merger of an Issuer or the
Guarantor into, any other Person or any conveyance, transfer or lease of the
properties and assets of such Issuer or the Guarantor substantially as an
entirety in accordance with Sections 8.01 or 8.02(a), the successor Person
formed by such consolidation or into which such Issuer 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, such Issuer
or the Guarantor under this Indenture with the same effect as if such successor
Person had been named as such Issuer 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 or the
Guarantees, as the case may be.
(b) Upon any assignment of its obligations under any series of
Securities by a Subsidiary Issuer to any Subsidiary Assignee in accordance with
Section 8.02(b), the Subsidiary Assignee shall succeed to, and be substituted
for, and may exercise every right and power of, such
100
Subsidiary Issuer under this Indenture with respect to such series of
Securities with the same effect as if such Subsidiary Assignee had been named as
such Subsidiary Issuer herein, and thereafter, such Subsidiary Issuer shall be
relieved of all obligations and covenants under this Indenture and the
Securities with respect to such series of Securities.
SECTION 8.04. Assumption by Company of Subsidiary Issuers'
--------------------------------------------
Obligations. (a) The Company may, at its option, assume the obligations of a
------------
Subsidiary Issuer as obligor under any series of Securities and this Indenture;
provided that:
--------
(i) the Company expressly assumes in an assumption agreement
or supplemental indenture executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on such Securities and the
performance or observance of every covenant of this Indenture on the
part of such Subsidiary Issuer to be performed or observed (including
any obligation to pay any Additional Amounts);
(ii) immediately after giving effect to such assumption, no
Event of Default and no event, which after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
(iii) the Company shall expressly agree in an assumption
agreement or supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, to immediately indemnify
(pursuant to the indemnification procedure described in Section 8.05)
the Holder of each Security against (i) any tax, assessment or
governmental charge imposed on such Holder or required to be withheld
or deducted from any payment to such Holder (including any governmental
charge or withholding tax attributable to the Company's indemnifying
such Holder) as a consequence of such assumption and (ii) any costs or
expenses of such assumption (except that if the Company delivers to the
Trustee an opinion of an independent counsel or a tax consultant of
recognized standing that the Holders will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such
assumption by the date of such assumption, a Holder will have
101
indemnification rights pursuant to the indemnification procedure
described in Section 8.05 only if and when gain for U.S. federal income
tax purposes is actually imposed on such Holder); and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate stating that such assumption and such assumption
agreement comply with this Article and that all conditions precedent
herein provided for relating to such assumption have been complied
with.
(b) Upon any assumption pursuant to Section 8.04(a), the
Company shall succeed to, and be substituted for, any may exercise every right
and power of, the applicable Subsidiary Issuer under such Securities and this
Indenture with the same effect as if the Company had been the applicable
Subsidiary Issuer thereof, and such Subsidiary Issuer shall be released from its
liability as obligor upon the Securities and under this Indenture.
SECTION 8.05. Indemnification Procedure. (a) If a transaction
--------------------------
described above under Sections 8.01, 8.02 or 8.04 (an "Indemnifiable
Transaction") should constitute a taxable event for U.S. federal income tax
purposes, the Company or any Person, as the case may be, must indemnify a Holder
of a Security against any tax, assessment or governmental charge imposed on such
Holder or required to be withheld or deducted from any payment to such Holder
(including any governmental charge or withholding attributable to an
indemnification payment made by or on behalf of the Company or any Person) and
any other tax costs or other tax expenses attributable to such Indemnifiable
Transaction, the Company or any such Person, as the case may be, shall comply
with the following indemnification procedures:
(1) Unless the Company or any such Person, as the case may be,
delivers to the Trustee by the date of an Indemnifiable Transaction an
opinion of an independent counsel or a tax consultant of recognized
standing to the effect that such Indemnifiable Transaction will not be
a taxable event for U.S. federal income tax purposes, the Company or
any such Person, as the case may be, shall send to each Holder on or
prior to the date of such Indemnifiable Transaction (i) notification
explaining the U.S. federal income tax consequences to each such Holder
of such Indemnifiable Transaction and
102
(ii) an indemnification claim form requesting (A) information
concerning each such Holder's tax basis and holding period in a
Security and (B) a statement that the Holder is not then an entity
described in Section 5.01 of the Code that is exempt from U.S. federal
income tax and (iii) a statement setting forth the address to which
each such Holder must remit such form.
(2) If the Company or any such Person delivers such an
opinion, each Holder will have indemnification rights pursuant to this
Section 8.05 only if and when gain for U.S. federal income tax purposes
is actually imposed on such Holder.
(3) When the Company or any Person, as the case may be,
receives from a Holder an indemnification claim form, the Company or
such Person, as the case may be, shall within 15 business days remit to
such Holder a certified check in an amount equal to the sum of (i) the
product of any gain recognized as a result of the Indemnifiable
Transaction and the highest marginal tax rate in effect at the time of
such Indemnifiable Transaction (the "Indemnification Amount"), and (ii)
the product of the Indemnification Amount and such tax rate. For these
purposes, a Holder's gain shall equal the amount by which the fair
market value of a Security at the time of such Indemnifiable
Transaction exceeds such Holder's adjusted tax basis in such Security.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of
------------------------------------------
Holders. Without the consent of any Holders, any Issuer or the Guarantor, when
--------
authorized by a Board Resolution of such Issuer or the Guarantor, as the case
may be, 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 such
Issuer or the Guarantor and the assumption by any such successor of the
covenants of such Issuer or
103
the Guarantor herein and in the Securities or the Guarantees; or
(b) to add to the covenants of such Issuer 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 such Issuer or the Guarantor; or
(c) to add any additional Events of Default with respect to
any or all series of Securities (and, if any such Event of Default
applies to fewer than all series of Securities, stating each series to
which such Event of Default applies); or
(d) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; 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 establish the form or terms of Securities
of any series as permitted by Sections 2.01 and 3.01;
or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(h) 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
104
questions arising under this Indenture; provided that, in each case,
such provisions shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or
(i) to add to the conditions, limitations and restrictions on
the authorized amount, form, terms or purposes of issue, authentication
and delivery of Securities, as herein set forth, other conditions,
limitations and restrictions thereafter to be observed; or
(j) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 4.01; provided that any such action shall not adversely affect
the interests of the Holders of Securities of such series and any
related coupons or any other series of Securities in any material
respect; or
(k) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 9.05 or otherwise.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the applicable
Issuer, the Guarantor and the Trustee, the applicable Issuer and the Guarantor,
when authorized by Board Resolutions of, respectively, the applicable Issuer and
the Guarantor, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
--------
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or
105
the rate of interest thereon or any premium payable upon the redemption
thereof, or change any obligation of such Issuer or the Guarantor to
pay any Additional Amounts or reduce the amount of the principal of a
Discounted Security or any other Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment after the Maturity thereof; or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series of such Issuer, 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
(c) modify any of the provisions of this Section or Sections
5.13 and 10.11, 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 with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 10.11, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11(b) and 9.01(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.
Upon the request of the applicable Issuer and the Guarantor,
each accompanied by copies of Board Resolutions of, respectively, the applicable
Issuer and the Guarantor authorizing the execution of any such supplemental
98
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with such Issuer and the Guarantor
in the execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. 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
6.01) shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate 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 9.04. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to the Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 9.06. 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 applicable Issuer and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and such Issuer and the Guarantor, to any
such supplemental indenture may be prepared and executed by such Issuer, the
notation of the
99
Guarantor or the Guarantees endorsed thereon may be prepared and executed by the
Guarantor and such Securities may be and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest. Each of
------------------------------------------
the Issuers covenants and agrees for the benefit of the Holders of each series
of Securities of such Issuer that it will duly and punctually pay the principal
of (and premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. Each of the Issuers
-------------------------------
will maintain in each Place of Payment for any series of Securities of such
Issuer, an office or agency where Securities of such series may be presented or
surrendered for payment, where Securities of such series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
such Issuer in respect of the Securities of such series and this Indenture may
be served. The office of the Trustee at its Corporate Trust Office or at the
offices or agencies of its agent shall be such office or agency of each of the
Issuers, except to the extent that any of the Issuers shall designate and
maintain some other office or agency for one or more of such purposes. Each
applicable Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time an Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and each of the Issuers hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Each of the Issuers may from time to time designate one or more other
offices or agencies where the Securities of one or more series of such Issuer
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation; provided, however, that no such designation or
-------- -------
rescission shall in any
100
manner relieve such Issuer of its obligation to maintain an office or agency in
each Place of Payment for Securities of any series for such purposes. Each
applicable Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such office
or agency.
The Guarantor will maintain in each Place of Payment for any series of
Securities to which the Guarantees apply an office or agency where Securities of
such series may be presented or surrendered for payment pursuant to the
Guarantees and where notices and demands to or upon the Guarantor in respect of
the Guarantees and this Indenture may be served. The Guarantor will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Guarantor shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrender
and demands.
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series to which the
Guarantees apply may be presented or surrendered for such purpose or where such
notices or demands may be served and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Guarantor of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.03. Money for Security Payments to be Held in Trust. If
-----------------------------------------------
any of the Issuers or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or not more than one
Business Day before each due date of the principal of (and premium, if any) 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 premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise
101
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
If any of the Issuers shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any), or interest on, any Securities of that series, deposit
with a Paying Agent a sum in same day funds sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the applicable Issuer will promptly
notify the Trustee of such action or any failure so to act.
The applicable Issuer will cause each Paying Agent 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
premium, if any) or interest on Securities 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 applicable Issuer
(or any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(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; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
Any of the Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the applicable Issuer or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those
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upon which such sums were held by such Issuer 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 any of the Issuers or the Guarantor, in trust for the payment of the
principal of (and premium, if any) or interest or Additional Amounts on any
Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest or Additional Amounts has become due and payable
shall be paid to the applicable Issuer or the Guarantor on Issuer Request, or
(if then held by such Issuer or the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the applicable Issuer or the Guarantor for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of such Issuer or the Guarantor
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 applicable Issuer or the Guarantor cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the Borough of Manhattan, The
City of New York, or mail to each such Holder or both 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, publication or mailing,
any unclaimed balance of such money then remaining will be repaid to such Issuer
or the Guarantor.
SECTION 10.04. Corporate Existence. Subject to Article VIII, each of
-------------------
the Issuers and the Guarantor shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises (including those of each Subsidiary);
provided, however, that each of the Issuers and the Guarantor shall not be
-------- -------
required to preserve any such right or franchise if its respective Board of
Directors shall determine in a Board Resolution that the preservation thereof is
no longer desirable in the conduct of the business of the applicable Issuer or
the Guarantor and that the loss thereof is not disadvantageous in any material
respect to the Holders; and provided further, however, that the foregoing shall
---------------- -------
not prohibit a sale, transfer or
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conveyance of a Subsidiary or assets of any Issuer or any Subsidiary in
compliance with the terms of this Indenture.
SECTION 10.05. Maintenance of Properties. Each of the Issuers and the
-------------------------
Guarantor shall cause all properties owned by it or any of its Subsidiaries or
used or held for use in the conduct of its business or the business of any of
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of such Issuer or the Guarantor may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
-------- -------
Section shall prevent any Issuer or the Guarantor from discontinuing the
maintenance of any of such properties if such discontinuance is, in the judgment
of such Issuer or the Guarantor, desirable in the conduct of its business or the
business of any of its Subsidiaries and not disadvantageous in any material
respect to the Holders of any of the Securities of such Issuer.
SECTION 10.06. Payment of Taxes and Other Claims. Each of the Issuers
---------------------------------
and the Guarantor will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the applicable Issuer or the
Guarantor or any Subsidiary thereof or upon the income, profits or property of
such Issuer or the Guarantor or any Subsidiary thereof, and (b) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of such Issuer or the Guarantor or any Subsidiary
thereof; provided, however, that any such Issuer and the Guarantor shall not be
-------- -------
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 10.07. Additional Amounts. All payments of, or in respect of,
------------------
principal of and any premium and interest on Securities issued by a Subsidiary
Issuer shall be made without withholding or deduction for, or on account of, any
present or future taxes, duties, levies, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which
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the Subsidiary Issuer is incorporated or resident (or deemed for tax purposes to
be resident) (the "applicable taxing jurisdiction"), unless such taxes, duties,
levies, assessments or governmental charges are required by the applicable
taxing jurisdiction or any such subdivision or authority to be withheld or
deducted. In that event, the Subsidiary Issuer will pay by way of additional
interest such additional amounts of, or in respect of, principal and any premium
and interest ("Additional Amounts") as will result (after deduction of such
taxes, duties, levies, assessments or governmental charges and any additional
taxes, duties, levies, assessments or governmental charges payable in respect of
such Additional Amounts) in the payment to each Holder of such Securities of the
amounts which would have been payable in respect of such Securities had no such
withholding or deduction been required, except that no Additional Amounts shall
be so payable for or on account of:
(1) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder: (A) was a
resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the applicable
taxing jurisdiction or otherwise had some connection with the applicable
taxing jurisdiction other than the mere ownership of such Security; (B)
presented (if presentation is required) such Security for payment in the
applicable taxing jurisdiction, unless such Security could not have been
presented for payment elsewhere; or (C) presented (if presentation is
required) such Security more than thirty (30) days after the date on which
the payment in respect of such Security first became due and payable or
provided for, whichever is later, except to the extent that the Holder
would have been entitled to such Additional Amounts if it had presented
such Security for payment on any day within such period of thirty (30)
days;
(2) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect
of,
105
principal of or any premium or interest on the Security;
(4) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of a Security with a request of the applicable Subsidiary
Issuer addressed to the Holder (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner
or (B) to make any declaration or other similar claim or satisfy any
information or reporting requirement, which, in the case of (A) or (B), is
required or imposed by a statute, treaty, regulation or administrative
practice of the applicable taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental
charge; or
(5) any combination of items (1), (2), (3) and (4);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Security to any Holder who
is a fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of the
applicable taxing jurisdiction to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the Holder of the Security.
Whenever in this Indenture there is mentioned, in any context, the
payment of principal of, or any premium or interest on, or in respect of, any
Securities of any series issued by a Subsidiary Issuer or the net proceeds
received on the sale or exchange of any Securities of any series issued by a
Subsidiary Issuer, 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 this Indenture.
SECTION 10.08. Limitations on Liens. (a) The Company will not, and
--------------------
will not permit any Restricted Subsidiary to, hereafter, create, assume or
suffer to exist any mortgage, security interest, pledge or lien (herein referred
106
to as a "Lien") of or upon any Principal Property, or any shares of capital
stock or evidences of indebtedness for borrowed money issued by any Restricted
Subsidiary and owned by the Company or any Restricted Subsidiary, whether owned
at the date of this Indenture or thereafter acquired, without making effective
provision, and the Company in such case will make or cause to be made effective
provision, whereby the Securities shall be secured by such Lien equally and
ratably with any and all other indebtedness or obligations thereby secured, so
long as such indebtedness or obligations shall be so secured; provided, however,
-------- -------
that the foregoing shall not apply to any of the following:
(i) Liens that exist on the date of this Indenture;
(ii) Liens on property, shares of capital stock or evidences
of indebtedness of any corporation existing at the time such
corporation becomes a Subsidiary;
(iii) Liens in favor of the Company or any Subsidiary;
(iv) Liens in favor of governmental bodies to secure progress,
advance or other payments pursuant to contract or statute or indebtedness
incurred to finance all or a part of construction of or improvements to
property subject to such Liens;
(v) Liens (A) on property, shares of capital stock or evidences of
indebtedness for borrowed money existing at the time of acquisition thereof
(including acquisition through merger or consolidation), and construction
and improvement Liens that are entered into within one year from the date
of such construction or improvement; provided that in the case of
--------
construction or improvement the Lien shall not apply to any property
theretofore owned by the Company or any Restricted Subsidiary except
substantially unimproved real property on which the property so constructed
or the improvement is located and (B) for the acquisition of any Principal
Property, which Liens are created within 180 days after the completion of
such acquisition to secure or provide for the payment of the purchase price
of the Principal Property acquired; provided that any such Liens do not
--------
extend to any other property of the Company or any of its Subsidiaries
(whether such property is then owned or thereafter acquired);
107
(vi) mechanics', landlords' and similar Liens arising in the
ordinary course of business in respect of obligations not due or being
contested in good faith;
(vii) Liens for taxes, assessments, or governmental charges or levies
that are not delinquent or are being contested in good faith;
(viii) Liens arising from any legal proceedings that are being
contested in good faith;
(ix) any Liens that (A) are incidental to the ordinary conduct of
its business or the ownership of its properties and assets, including Liens
incurred in connection with workmen's compensation, unemployment insurance
or other forms of governmental insurance or benefits, or to secure perform-
ance of tenders, statutory obligations, leases and contracts, (B) were not
incurred in connection with the borrowing of money or the obtaining of
advances or credit and (C) do not in the aggregate materially detract from
the value of the property of the Company or any Subsidiary or materially
impair the use thereof in the operation of its business;
(x) Liens securing industrial development or pollution control
bonds; and
(xi) Liens for the sole purpose of extending, renewing or replacing
(or successively extending, renewing or replacing) in whole or in part any
of the foregoing.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 10.08, the Company or any Restricted Subsidiary may, without equally and
ratably securing the Securities, create, assume or suffer to exist Liens which
would otherwise be subject to the foregoing restrictions if at the time of such
creation, assumption or sufferance of existence, and after giving effect
thereto, Exempted Indebtedness does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION 10.09. Limitations on Sale and Leaseback. (a) The Company
---------------------------------
will not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any person providing for the leasing (as lessee) by the Company
or any Restricted Subsidiary of any Principal Property (except for
108
temporary leases for a term, including any renewal thereof, of not more than
three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries) which property has been or is to
be sold or transferred by the Company or a Restricted Subsidiary to such person
(herein referred to as a "Sale and Leaseback Transaction") unless either
(i) the Company or such Restricted Subsidiary would be entitled to incur a Lien
on such property without equally and ratably securing the Securities pursuant to
paragraph (a) of Section 10.08 or (ii) the net proceeds of such sale are at
least equal to the fair value (as determined by the Board of Directors) of such
property and the Company shall apply an amount equal to the net proceeds of such
sale to (A) the retirement (other than any mandatory retirement or payment at
maturity) of (x) Securities (other than any retirement prohibited by the terms
of any Securities pursuant to prohibitions on advance refundings) or (y) Funded
Debt of the Company or any Restricted Subsidiary ranking prior to or on a parity
with the Securities or (B) the acquisition, construction or improvement of a
Principal Property, within 120 days of the effective date of any such
arrangement.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 10.09, the Company or any Restricted Subsidiary may enter into Sale and
Leaseback Transactions, if at the time of such entering into, and after giving
effect thereto, Exempted Indebtedness does not exceed 10% of Consolidated Net
Tangible Assets.
SECTION 10.10. Statement by Officers as to Default. The Company will
-----------------------------------
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a certificate signed by its principal
executive officer, principal financial officer or principal accounting officer,
stating whether or not to the best knowledge of the signers thereof the Company
or any of the Subsidiary Issuers is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture, and if the
Company or any of the Subsidiary Issuers shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
SECTION 10.11. Waiver of Certain Covenants. Any Issuer and the
----------------------------
Guarantor may, with respect to the Securities of a series of such Issuer, omit
in any particular instance to comply with any covenant or condition set forth in
109
Sections 10.02 through 10.09 if, before or after the time for such compliance,
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of such Issuer and the Guarantor
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.12. Defeasance of Certain Obligations. If specified
---------------------------------
pursuant to Section 3.01 to be applicable to the Securities of any series, the
Issuer thereof may omit to comply with any term, provision or condition set
forth in Sections 8.01, 8.02, 10.08 and 10.09 and any such omission with respect
to such Sections shall not be an Event of Default, in each case with respect to
the Securities of such series; provided, however, that the following conditions
-------- -------
have been satisfied:
(a) with respect to all Outstanding Securities of such series and any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation, the applicable Issuer or the Guarantor shall have deposited
or caused to be deposited with the Trustee for such series as trust funds
or obligations in trust an amount of:
(i) cash in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series);
(ii) Government Obligations; or
(iii) a combination of such cash and Government Obligations;
in each case in an amount which, together with, as evidenced by a
Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, the predetermined and certain income to accrue on any Government
Obligations when due (without the consideration of any reinvestment
thereof) is sufficient to pay and discharge when due the entire
indebtedness on all such
110
Outstanding Securities of such series and any related coupons for unpaid
principal (and premium, if any) and interest, if any, to the Stated
Maturity or any Redemption Date, as the case may be;
(b) 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 applicable Issuer or the Guarantor is a party or by
which it is bound;
(c) 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 5.01(e) or
Section 5.01(f) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(e) or Section
5.01(f) shall have occurred and be continuing on the 91st day after such
date;
(d) the applicable Issuer 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
defeasance contemplated in the Section have been complied with; and
(e) the applicable Issuer or the Guarantor, as the case may be, shall
have delivered to the Trustee, not later than the date of such deposit, an
Opinion of Counsel stating that the Holders of the Securities of such
series will not recognize gain or loss for Federal income tax purposes or
be subject to any taxes or recognize gain or loss for income tax purposes
in the jurisdictions in which such Issuer is organized, resident or carries
on a business as a result of such deposit and defeasance and will be
subject to Federal income tax and income taxes, capital and other taxes,
including withholding taxes in such jurisdiction 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.
All obligations of the applicable Issuer and the Guarantor under this
Indenture with respect to the Securities of such series, other than with respect
to
111
Sections 8.01, 8.02, 10.08 and 10.09, shall remain in full force and effect.
Anything in this Section 10.12 to the contrary notwithstanding, the Trustee for
any series of Securities shall deliver or pay to the applicable Issuer or the
Guarantor, from time to time upon Issuer Request, any money or Government
Obligations held by it as provided in this Section 10.12 which, as expressed in
a Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, are in excess of the amount thereof which would then have been required
to be deposited for the purpose of which such money or Government Obligations
were deposited or received; provided such delivery can be made without
liquidating any Government Obligations.
SECTION 10.13. Calculation of Original Issue Discount. The Company
--------------------------------------
shall file with the Trustee promptly following the end of each calendar year for
which there are Outstanding Securities a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of such year.
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
an Issuer to redeem any Securities of any series of such Issuer pursuant to
Section 11.01 shall be evidenced by a Board Resolution of such Issuer and an
Officers' Certificate. In case of any redemption at the election of an Issuer,
such Issuer shall, at least 60 days prior to the Redemption Date fixed by such
Issuer (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities of the series to be redeemed.
SECTION 11.03. Selection by Trustee of Securities to be Redeemed. If
-------------------------------------------------
less than all the Securities of any
112
series are to be redeemed, the particular Securities or portions thereof to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by lot (unless otherwise notified in writing by the
Issuer), and the amounts to be redeemed may be equal to $1,000 or any integral
multiple thereof.
The Trustee shall promptly notify the applicable Issuer and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be
--------------------
given by first-class mail, postage pre-paid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed, and that after the Redemption Date
upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) subject to Section 11.07, that Securities called for redemption
must be surrendered to the Paying Agent to collect the Redemption Price;
113
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that (unless
the applicable Issuer shall default in payment of the Redemption Price)
interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(h) the CUSIP Number of the Securities; and
(i) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
any of the Issuers shall be given by the applicable Issuer or, at such Issuer's
request, by the Trustee in the name and at the expense of such Issuer.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 11.05. Deposit of Redemption Price. On or prior to any
---------------------------
Redemption Date the applicable Issuer shall deposit with the Trustee or with a
Paying Agent (or, if such Issuer is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.03) an amount of money in same day
funds 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
or portions thereof which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the applicable Issuer
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
applicable Issuer at the Redemption
114
Price together with accrued interest to the Redemption Date; provided, however,
-------- -------
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to the terms and provisions of
Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
SECTION 11.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at the office or agency of the
applicable Issuer maintained for such purpose pursuant to Section 10.02 (with,
if the applicable Issuer, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to such
Issuer, the Security Registrar or the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the applicable Issuer
shall execute, the Guarantor shall execute the notation of the Guarantees
pursuant to Article XIII or the Guarantees endorsed on, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
to the Holder, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, however, that the Depositary or the
-------- -------
Bearer Security Depositary need not surrender Global Securities or UK Global
Securities, as the case may be, for a partial redemption and may be authorized
to make a notation on such Global Security or UK Global Security of such partial
redemption. In the case of a partial redemption of the Global Securities, the
Depositary, and in turn, the participants in the Depositary, shall have the
responsibility to select any Securities to be redeemed by random lot.
SECTION 11.08. Optional Redemption Due to Changes in Tax Treatment.
---------------------------------------------------
If as the result of any change in or any amendment to the laws, regulations or
published tax rulings of the applicable taxing jurisdiction affecting taxation,
or any change in the official administration, application or interpretation of
such laws, regulations or published tax
115
rulings either generally or in relation to any Securities issued by a Subsidiary
Issuer, which change or amendment becomes effective on or after the original
issue date of such Securities or which change in official administration,
application or interpretation shall not have been available to the public prior
to such issue date, it is determined by the applicable Subsidiary Issuer that
such Subsidiary Issuer (x) would be required to pay any Additional Amounts
pursuant to Section 10.07 of this Indenture or the terms of any Security (1) in
respect of interest on the next succeeding Interest Payment Date or (2) in
respect of the principal of any Discounted Securities on the date of such
determination, assuming that a payment in respect of such principal were
required to be made on such date under the terms of the Securities, and (y) such
obligation cannot be avoided by the Company or such Subsidiary Issuer taking
reasonable measures available to it, in either case (1) or (2) above such
Subsidiary Issuer may, at its option, redeem all (but not less than all) the
Securities of any series in respect of which such Additional Amounts would be so
payable at any time, upon notice as provided in Sections 11.02 and 11.04, at a
Redemption Price equal to 100% of the principal amount thereof plus accrued
interest to the date fixed for redemption (except that any such Securities that
are Outstanding Discounted Securities may be redeemed at the Redemption Price
specified in the terms thereof); provided, however, that (a) no such notice of
-------- -------
redemption may be given earlier than 60 days prior to the earliest date on which
the applicable Subsidiary Issuer would be obligated to pay such Additional
Amounts were a payment in respect of the Securities then due, and (b) at the
time any such redemption notice is given, such obligation to pay such Additional
Amounts must remain in effect. If (1) the applicable Subsidiary Issuer shall
have on any date (the "Succession Date") consolidated with or merged into, or
conveyed or transferred or leased its properties and assets substantially as an
entirety to, any Successor referred to in Section 8.02 which is organized under
the laws of any jurisdiction other than the United States of America, any State
thereof or the District of Columbia or the jurisdiction in which such Subsidiary
Issuer is organized, (2) as the result of any change in or any amendment to the
laws, regulations or published tax rulings of such jurisdiction of organization,
or of any political subdivision or taxing authority thereof or therein,
affecting taxation, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in
116
relation to any particular Securities, which change or amendment becomes
effective on or after the Succession Date or which change in official
administration, application or interpretation shall not have been available to
the public prior to such Succession Date and is notified to the Subsidiary
Issuer of such series of Securities, such Successor would be required to pay any
Successor Additional Amounts pursuant to Section 8.02 hereof or the terms of any
Securities (i) in respect of interest on any Securities on the next succeeding
Interest Payment Date, or (ii) in respect of the principal of any Discounted
Securities on the date of such determination (assuming such principal were
required to be paid on such date under the terms of the Securities) and (3) such
obligation cannot be avoided by the Company or such Successor taking reasonable
measures available to it, such Subsidiary Issuer or such Successor may, at its
option, redeem all (but not less than all) of the Securities of any series in
respect of which such Successor Additional Amounts would be so payable at any
time, upon notice as provided in Sections 11.02 and 11.04, at a Redemption Price
equal to 100% of the principal amount thereof plus accrued interest to the date
fixed for redemption (except that any such Securities that are Outstanding
Discounted Securities may be redeemed at the Redemption Price specified in the
terms thereof); provided, however, that (1) no such notice of redemption may be
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given earlier than 60 days prior to the earliest date on which a Successor would
be obligated to pay such Successor Additional Amounts were a payment in respect
of the Securities then due, and (2) at the time any such redemption notice is
given, such obligation to pay such Successor Additional Amounts must remain in
effect.
Prior to any redemption of any Securities pursuant to this Section,
the applicable Subsidiary Issuer or a Successor shall provide the Trustee with
an Opinion of Counsel that the conditions precedent to the right of such
Subsidiary Issuer or Successor to redeem such Securities pursuant to this
Section have occurred. Such Opinion of Counsel shall be based on the laws and
application and interpretation thereof in effect on the date of such opinion or
to become effective on or before the next succeeding Interest Payment Date.
SECTION 11.09. Optional Redemption. If the Board Resolution, the
-------------------
Officers' Certificate (pursuant to such Board Resolution) or supplemental
indenture establishing any series of Securities of any Issuer expressly provides
that
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this Section 11.09 will be applicable to such series, Securities of such series
will be redeemable as a whole or in part, at the option of such Issuer at any
time, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Securities to be redeemed and (ii) the sum of the present values
of the Remaining Scheduled Payments thereon discounted to the Redemption Date on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus, if applicable, the number of basis points specified
in such Board Resolution or supplemental indenture, plus in either case accrued
interest on the principal amount being redeemed to the Redemption Date.
SECTION 11.10. Conditional Right to Shorten Maturity. (a) Unless the
-------------------------------------
Board Resolution, the Officers' Certificate (pursuant to such Board Resolution)
or supplemental indenture establishing any series of Securities of any Issuer
expressly provides that this Section 11.10 will not be applicable to such
series, upon occurrence of a Tax Event (as defined below), any Issuer of
Securities of any series with a Stated Maturity of greater than 40 years from
their date of issue (the "Tax Event Securities") will have the right to shorten
the Stated Maturity of Tax Event Securities to the extent required, in the
opinion of a nationally recognized independent tax counsel, such that, after the
shortening of the Stated Maturity, interest paid on Tax Event Securities will be
deductible for United States federal income tax purposes.
(b) In the event that the applicable Issuer elects to exercise its
rights to shorten the maturity of Tax Event Securities on the occurrence of a
Tax Event, such Issuer will, by first-class mail, postage prepaid, give a notice
of shortened maturity to each Holder of such Tax Event Securities not more than
60 days after the occurrence of such Tax Event, which notice shall state the new
Stated Maturity of such Tax Event Securities.
(c) For purposes of this Section 11.10, "Tax Event" means that the
applicable Issuer of a series of Securities shall have received an opinion of a
nationally recognized independent tax counsel to the effect that on or after the
date of the issuance of such Securities, as a result of (a) any amendment to,
clarification of, or change (including any announced prospective change) in
laws, or any regulations thereunder, of the United States, (b) any judicial
decision, official administrative pronouncement,
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ruling, regulatory procedure, notice or announcement, including any notice or
announcement of intent to adopt such procedures or regulations (an
"Administrative Action"), or (c) any amendment to, clarification of, or change
in the official position or the interpretation of such Administrative Action or
judicial decision that differs from the theretofore generally accepted position,
in each case, on or after, the date of the issuance of such Securities, such
change in tax law creates a more than insubstantial risk that interest paid by
the applicable Issuer on such Securities is not, or will not be, deductible, in
whole or in part, by such Issuer for purposes of United States federal income
tax.
ARTICLE XII
Sinking Funds
-------------
SECTION 12.01. 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
3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.02. 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 12.02. Satisfaction of Sinking Fund Payments with
------------------------------------------
Securities. Any Issuer (a) may deliver Outstanding Securities of a series
----------
(other than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of such
Issuer 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
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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 12.03. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 90 days prior to each sinking fund payment date for any series of
Securities, the applicable Issuer 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 12.02, and will also deliver to the Trustee any Securities
to be so delivered. The Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of such Issuer in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
Guarantees of Securities
------------------------
SECTION 13.01. Guarantees. This Section 13.01 and Section 13.02 apply
----------
to the Securities of any series of any Subsidiary Issuer to the extent that the
form of the Guarantees to be endorsed on such Securities is not otherwise
established as contemplated by Section 3.01.
The Guarantor hereby fully and unconditionally guarantees to each
Holder of a Security of each series issued by a Subsidiary Issuer, authenticated
and delivered by the Trustee the due and punctual payment of the principal
(including any amount due in respect of original issue discount) of and any
premium and interest on such Security (and any Additional Amounts (as defined in
Section 10.07) payable in respect thereof), and the due and punctual
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payment of any sinking fund payments provided for pursuant to the terms of such
Security, when and as the same shall become due and payable, whether at the
Stated Maturity, by declaration of acceleration, call for redemption or
otherwise, in accordance with the terms of such Security and of this Indenture.
The Guarantor hereby agrees that in the event of an Event of Default its
obligations hereunder shall be as if it were a principal debtor and not merely a
surety, and shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any Security
of any series or this Indenture, any failure to enforce the provisions of any
Security of any series or this Indenture, any waiver, modification or indulgence
granted to the applicable Subsidiary Issuer with respect thereto, by the Holder
of any Security of any series of such Subsidiary Issuer or the Trustee, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor; provided, however, that, notwithstanding the
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foregoing, no such waiver, modification or indulgence shall, without the consent
of the Guarantor, increase the principal amount of any Security of a Subsidiary
Issuer or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the applicable Subsidiary Issuer, any right to require a proceeding first
against such Subsidiary Issuer, the benefit of discussion, protest or notice
with respect to any Security of such Subsidiary Issuer or the indebtedness
evidenced thereby or with respect to any sinking fund payment required pursuant
to the terms of such Security issued under this Indenture and all demands
whatsoever, and covenants that this Guarantee will not be discharged with
respect to such Security except by payment in full of the principal thereof and
any premium and interest thereon or as provided in Article IV, Section 8.01 or
Section 10.12. If any Holder or the Trustee is required by any court or
otherwise to return to any Subsidiary Issuer, the Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to such Issuer
or the Guarantor any amount paid by such Issuer or the Guarantor to the Trustee
or such Holder, this Guarantee to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor further agrees that, as
between the Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, the Maturity of the obligations guaranteed hereby may be accelerated
as provided in Article V hereof for the purposes
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of this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby.
The Guarantor also agrees, to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holders in enforcing any rights under this Guarantee.
The Guarantor hereby waives any right of set-off which the Guarantor
may have against the Holder of any Security of a Subsidiary Issuer in respect of
any amounts which are or may become payable by such Holder to such Subsidiary
Issuer.
The Guarantor shall be subrogated to all rights of the Holders of any
series of Securities and the Trustee against the applicable Subsidiary Issuer in
respect of any amounts paid to such Holders and the Trustee by the Guarantor
pursuant to the provisions of the Guarantees; provided, however, that the
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Guarantor shall not be entitled to enforce or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, premium,
if any, and interest and any Additional Amounts on all of the Securities of such
series shall have been paid in full.
No past, present or future stockholder, officer, director, employee or
incorporator of the Guarantor shall have any personal liability under the
Guarantees set forth in this Section 13.01 by reason of his or its status as
such stockholder, officer, director, employee or incorporator.
The Guarantees set forth in this Section 13.01 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 or on
behalf of the Trustee.
SECTION 13.02. Execution of Guarantees. To evidence its guarantee to
-----------------------
the Holders specified in Section 13.01, the Guarantor hereby agrees to execute
the notation of the Guarantee in substantially the form set forth in Section
2.04 to be endorsed on each Security authenticated and delivered by the Trustee.
The Guarantor hereby agrees that its Guarantee set forth in Section 13.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such
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Guarantee. Each such notation of such Guarantee shall be signed on behalf of the
Guarantor, by any Authorized Officer, prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the due authentication thereof by the Trustee hereunder, shall
constitute due delivery of the Guarantee on behalf of the Guarantor. Such
signatures upon the notation of the Guarantee may be manual or facsimile
signatures of any present, past or future such Authorized Officers and may be
imprinted or otherwise reproduced below the notation of the Guarantee, and in
case any such Authorized Officer who shall have signed the notation of the
Guarantee shall cease to be such Authorized Officer before the Security on which
such notation is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the applicable Subsidiary Issuer, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed the notation of the Guarantee had not ceased to be such
Authorized Officer of the Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
CROWN CORK & SEAL COMPANY, INC.,
By
/s/ Xxxxx X.X. Xxxxx
--------------------------------
Name: Xxxxx X.X. Xxxxx
Title: Senior Vice President -
Finance and Treasurer
Attest: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary and
Assistant General Counsel
CROWN CORK & SEAL FINANCE PLC,
By
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
By /s/ Xxxxx X.X. Xxxxx
--------------------------------
Name: Xxxxx X.X. Xxxxx
Title: Director
CROWN CORK & SEAL FINANCE S.A.,
By
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
and Director
THE BANK OF NEW YORK, as Trustee,
By
/s/ Xxxxxx X. Xxxxxxxxx III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: Assistant Vice President
