As filed with the Securities and Exchange Commission on November 14, 1995.
Registration No. 33-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
Registration Statement
Under
The Securities Act of 1933
-------------------------
NEWELL CO.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 36-3514169
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
Newell Center Dale L. Matschullat
29 East Stephenson Street 4000 Auburn Street
Freeport, Illinois 61032 Rockford, Illinois 61125
(815) 235-4171 (815) 969-6101
(Address, Including Zip Code, and (Name, Address, Including Zip Code,
Telephone Number, Including Area Code, and Telephone Number, Including
of Registrant's Principal Executive Area Code of Agent for Service)
Offices)
Please send copies of all communications to:
Andrew A. Kling
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
(312) 876-1000
--------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. /__/
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. /X/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. /__/ ________________
If this Form is a post effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. /__/ _____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. /X/
CALCULATION OF REGISTRATION FEE
Proposed Maximum Aggregate
Title of Each Class of Securities To Be Registered Offering Price (1) Amount of Registration Fee
Debt Securities . . . . . . . . . . . . . . . . . . (2)
Preferred Stock . . . . . . . . . . . . . . . . . . (2)
Common Stock, Par Value $1.00 Per Share, and
related Preferred Stock Purchase Rights(3) . . . . (2)
Total . . . . . . . . . . . . . . . . . . . . . . . $500,000,000 $100,000
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(o).
(2) Not applicable pursuant to Form S-3, General Instruction II.D.
(3) The value attributable to the Preferred Stock Purchase Rights
is reflected in the value attributable to the Common Stock.
-------------------------
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH
SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH
STATE.
PROSPECTUS (Subject to Completion, Issued November 14, 1995)
NEWELL CO.
$500,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK, PAR VALUE $1.00 PER SHARE
AND RELATED PREFERRED STOCK PURCHASE RIGHTS
------------------------------
Newell Co., a Delaware corporation (the "Company"), may
offer from time to time, together or separately, its (i) unsecured
debt securities (the "Debt Securities"); (ii) preferred stock (the
"Preferred Stock"); and (iii) common stock, par value $1.00 per share
(the "Common Stock"), and related preferred stock purchase rights (the
"Rights"). The Debt Securities, Preferred Stock, Common Stock and
Rights are collectively referred to as the "Securities."
The Securities offered pursuant to this Prospectus may be
issued in one or more series or issuances at an aggregate initial
offering price not to exceed $500,000,000 (or its equivalent in
foreign currency or current units) in amounts, at prices and on terms
to be determined at or prior to the time of sale and set forth in one
or more supplements to this Prospectus (each, a "Prospectus
Supplement").
Certain specific terms of the particular Securities in
respect of which this Prospectus is being delivered will be set forth
in the accompanying Prospectus Supplement, including, where
applicable, the initial public offering price of the Securities, the
net proceeds thereof to the Company, any listing of such Securities on
a securities exchange and any other special terms. The Prospectus
Supplement will set forth with regard to the Securities being offered,
without limitation, the following: (i) in the case of the Debt
Securities, the specific designation, priority of payment, aggregate
principal amount, authorized denominations, maturity, any interest
rate (which may be fixed or variable) or method of calculation of
interest and date or dates of payment of any interest, any premium,
the place or places where principal of, premium, if any, and any
interest on such Debt Securities will be payable, any terms of
redemption at the option of the Company or the holder, any terms for
sinking fund payments, the currency or currencies, composite currency,
currency unit or currency units (collectively, the "Currency") of
denomination and payment, any terms for conversion or exchange and any
other terms in connection with the offering and sale of Debt
Securities in respect of which this Prospectus is delivered; (ii) in
the case of the Preferred Stock, the designation, number of shares,
liquidation preference per share, dividend rate or method of
calculation, dividend periods, dividend payment dates, any voting
rights, any exchange, conversion, redemption, or sinking fund
provisions and any other rights, preferences, privileges, limitations
or restrictions relating to the Preferred Stock; and (iii) in the case
of the Common Stock, the number of shares and the terms of offering
thereof. If so specified in the applicable Prospectus Supplement, the
Securities may be issued in whole or in part in the form of one or
more temporary or global securities.
The Common Stock is listed on the New York Stock Exchange
(the "NYSE") and the Chicago Stock Exchange (the "CSE") under the
symbol "NWL." Any Common Stock sold pursuant to a Prospectus
Supplement will be approved for listing on such exchanges, upon notice
of issuance.
---------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
-------------------------------------
The Company may sell the Securities to or through
underwriters or dealers and may also sell the Securities directly to
other purchasers or through agents. See "Plan of Distribution." The
Prospectus Supplement will set forth the names of any underwriters,
dealers or agents involved in the sale of the Securities in respect of
which this Prospectus is being delivered and any applicable fee,
commission and discount arrangements with them. See "Plan of
Distribution" for a description of possible indemnification
arrangements between the Company and any underwriters, dealers or
agents.
This Prospectus may not be used to consummate sales of the
Securities without delivery of one or more Prospectus Supplements.
---------------------------------------
The date of this Prospectus is ______________, 1995.
IN CONNECTION WITH ANY UNDERWRITTEN OFFERING, THE
UNDERWRITERS OF SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information
filed by the Company may be inspected and copied at prescribed rates
at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: New York Regional
Office, Seven World Trade Center, 13th Floor, New York, New York,
10048 and Chicago Regional Office, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. The Common Stock is listed on the
NYSE and the CSE and such reports, proxy statements and other
information concerning the Company can be inspected at the offices of
the NYSE, 20 Broad Street, New York, New York 10005 and at the offices
of the CSE, One Financial Place, 440 South LaSalle Street, Chicago,
Illinois 60605-1070.
The Company has filed with the Commission a registration
statement on Form S-3 (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act") with respect
to the Securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement and the
exhibits and schedules thereto, certain portions of which have been
omitted pursuant to the rules and regulations of the Commission.
Statements made in this Prospectus as to the contents of any contract,
agreement or other document are not necessarily complete. With
respect to each such contract, agreement or other document filed or
incorporated by reference as an exhibit to the Registration Statement,
reference is made to such exhibit for a more complete description of
the matter involved, and each such statement is qualified in its
entirety by such reference. For further information, reference is
hereby made to the Registration Statement.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the
Commission pursuant to the Exchange Act are hereby incorporated herein
by reference:
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(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994;
(b) The Company's Current Report on Form 8-K dated
January 30, 1995;
(c) The Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995;
(d) The Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1995;
(e) The Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1995;
(f) The Company's Current Report on Form 8-K dated
August 10, 1995;
(g) The Company's Current Report on Form 8-K dated
October 31, 1995;
(h) The description of the Common Stock, contained in
the Company's Registration Statement on Form 8-B
dated June 30, 1987; and
(i) The description of the Rights, contained in the
Company's Registration Statement on Form 8-A dated
October 25, 1988.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus, and prior to the termination of the offering of
the Securities made hereby, shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date
of filing of such documents. Any statement contained herein, in a
Prospectus Supplement or in a document incorporated by reference or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of the Registration Statement and
this Prospectus to the extent that a statement contained herein, in a
Prospectus Supplement or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has
been delivered, upon the written or oral request of such person, a
copy of any or all of the documents which are incorporated herein by
reference, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference into such documents).
3
Requests for such copies should be directed to: Richard H. Wolff,
Secretary, Newell Co., 4000 Auburn Street, Rockford, Illinois 61125
(telephone: (815) 969-6111).
THE COMPANY
The Company is a manufacturer and full-service marketer of
high-volume consumer products serving the needs of volume purchasers.
The Company's basic strategy is to merchandise a multi-product
offering of brand-name staple products, with an emphasis on excellent
customer service, in order to achieve maximum results for its
stockholders. Product categories include housewares, hardware, home
furnishings, and office products. Each group of the Company's
products is manufactured and sold by a subsidiary or division (each
referred to herein as a "division," even if separately incorporated).
The Company manages the activities of its divisions through
executives at the corporate level, to whom the divisional managers
report, and controls financial activities through centralized
accounting, capital expenditure reporting, cash management, order
processing, billing, credit, accounts receivable and data processing
operations. The production and marketing functions of each division,
however, are conducted with substantial independence. Each division
is managed by employees who make day-to-day operating and sales
decisions and participate in an incentive compensation plan that ties
a significant part of their compensation to their division's
performance. The Company believes that this allocation of
responsibility and system of incentives fosters an entrepreneurial
approach to management that has been important to the Company's
success.
For the fiscal year ended December 31, 1994, the Company had
net sales of approximately $ 2,074,934,000 and operating income of
approximately $ 357,865,000.
The principal executive offices of the Company are located
at Newell Center, 29 East Stephenson Street, Freeport, Illinois 61032,
and its telephone number is (815) 235-4171.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus
Supplement, the net proceeds to be received by the Company from the
sale of the Securities will be used for general corporate purposes,
which may include the repayment of indebtedness, working capital
expenditures and investments in, or acquisitions of, businesses and
assets. Pending application of such net proceeds for specific
purposes, such proceeds may be invested in short-term or marketable
securities. Specific allocations of proceeds to a particular purpose
4
that have been made at the date of any Prospectus Supplement will be
described therein.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the
Debt Securities offered by any Prospectus Supplement and the extent,
if any, to which such general provisions are not applicable will be
described in a Prospectus Supplement relating to such Debt Securities.
The Debt Securities may be issued, in one or more series,
from time to time under either (1) an Indenture dated as of November
1, 1995 (the "Senior Indenture"), to be entered into between the
Company and The Chase Manhattan Bank (National Association), as
trustee (the "Senior Debt Securities Trustee"), providing for the
issuance of unsubordinated Debt Securities, or (2) an Indenture dated
as of November 1, 1995 (the "Subordinated Indenture"), to be entered
into between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Subordinated Debt Securities Trustee"),
providing for the issuance of subordinated Debt Securities.
The Senior Indenture and the Subordinated Indenture are
referred to herein individually as an "Indenture" and, collectively,
as the "Indentures," and the Senior Debt Securities Trustee and the
Subordinated Debt Securities Trustee are sometimes each referred to
herein as a "Trustee." Debt Securities which may be issued under the
Senior Indenture are referred to herein as "Senior Debt Securities,"
and Debt Securities which may be issued under the Subordinated
Indenture are referred to herein as "Subordinated Debt Securities."
Copies of the Indentures are filed as exhibits to the Registration
Statement. Capitalized terms not otherwise defined in this Prospectus
shall have the meanings set forth in the Indentures to which they
relate.
The following summaries of certain provisions of the Debt
Securities and the Indentures do not purport to be complete and are
subject to, and are qualified in their entirety by express reference
to, all of the provisions of the Indentures and the Debt Securities.
General
The Indentures do not limit the aggregate principal amount
of Debt Securities that may be issued thereunder. The Debt Securities
may be issued from time to time in one or more series up to the
aggregate principal amount which may be authorized therefor from time
to time by the Company.
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the principal of, and any premium or interest on,
5
the Debt Securities will be payable, and the Debt Securities will be
exchangeable and transfers thereof will be registrable, and notices
and demands to or upon the Company in respect of such Debt Securities
may be served, at the Place of Payment specified therefor pursuant to
each Indenture.
The Indentures do not contain provisions to afford the
Holders of Debt Securities protection in the event of a highly
leveraged transaction or a takeover attempt nor do they contain
provisions requiring the repurchase of any Debt Securities upon a
change in control of the Company. In addition, the Indentures do not
contain any provisions that would limit the ability of the Company and
its subsidiaries to incur unsecured indebtedness. See "Particular
Terms of the Senior Debt Securities -- Ranking of Senior Debt
Securities" below. Reference is made to any Prospectus Supplement
relating to the Debt Securities offered thereby for information with
respect to any deletions from, modifications of or additions to the
Events of Default or covenants of the Company applicable to such Debt
Securities that are described herein. See "Modification or Waiver"
below.
The Debt Securities may be issued under the Indentures as
Original Issue Discount Securities to be offered and sold at a
discount below their principal amount. United States federal income
tax, accounting and other special considerations applicable to any
such Original Issue Discount Securities will be described in any
Prospectus Supplement relating thereto. "Original Issue Discount
Security" means any security that provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof as a result of the occurrence of
an Event of Default and the continuation thereof. In addition, the
Debt Securities may, for United States federal income tax purposes, be
deemed to have been issued with "original issue discount" ("OID") even
if such securities are offered and sold at an amount equal to their
stated principal amount. The United States federal income tax
consequences of Debt Securities deemed to be issued with OID will be
described in any Prospectus Supplement relating thereto.
Under the Indentures, the Company will have the ability to
issue Debt Securities with terms different from those of Debt
Securities previously issued, without the consent of the Holders of
previously issued series of Debt Securities, in an aggregate principal
amount determined by the Company.
Registration and Transfer
The Debt Securities may be issued as Registered Securities
or Bearer Securities. Registered Securities will be exchangeable for
other Registered Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations. If
(but only if) provided for in the Prospectus Supplement applicable
thereto, Bearer Securities (with all unmatured Coupons, except as
6
provided below, and all matured Coupons in default) of any series may
be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor. In such event, Bearer Securities surrendered in a permitted
exchange for Registered Securities between a Regular Record Date or a
Special Record Date and the relevant date for payment of interest
shall be surrendered without the Coupon relating to such date for
payment of interest, and interest will not be payable on such date for
payment of interest in respect of the Registered Security issued in
exchange for such Bearer Security but will be payable only to the
holder of such Coupon when due, in accordance with the terms of the
Indenture. Unless otherwise specified in the Prospectus Supplement
applicable thereto, Bearer Securities will not be issued in exchange
for Registered Securities.
The Debt Securities may be presented for exchange as
described above, and Registered Securities may be presented for
registration of transfer (duly endorsed or accompanied by a written
instrument of transfer), at the corporate trust office of the Trustee
in New York, New York, or at the office of any transfer agent
designated by the Company for such purpose with respect to any series
of Debt Securities and referred to in the Prospectus Supplement
applicable thereto. No service charge will be made for any transfer
or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable
in connection therewith. If any Prospectus Supplement refers to any
transfer agent (in addition to the applicable Trustee) initially
designated by the Company with respect to any series of Debt
Securities, the Company may at any time rescind the designation of any
such transfer agent or approve a change in the location at which any
such transfer agent acts, except that, if Debt Securities of a series
are issuable solely as Registered Securities, the Company will be
required to maintain a transfer agent in each Place of Payment for
such series and, if Debt Securities of a series may be issuable both
as Registered Securities and as Bearer Securities, the Company will be
required to maintain (in addition to the applicable Trustee) a
transfer agent in a Place of Payment for such series located outside
the United States. The Company may at any time designate additional
transfer agents with respect to any series of Debt Securities.
In the event of any redemption of Debt Securities of any
series, the Company shall not be required to: (i) issue, register the
transfer of or exchange Debt Securities of such series during a period
beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close
of business on (A) if Debt Securities of the series are issuable only
as Registered Securities, the day of mailing of the relevant notice of
redemption and (B) if Debt Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also
issuable as Registered Securities and there is no publication, the day
of mailing of the relevant notice of redemption; (ii) register the
7
transfer of or exchange any Registered Security, or portion thereof,
called for redemption, except the unredeemed portion of any Registered
Security being redeemed in part; (iii) exchange any Bearer Security
selected for redemption, except to exchange such Bearer Security for a
Registered Security of that series and like tenor that is
simultaneously surrendered for redemption; or (iv) issue, register the
transfer of or exchange any Debt Securities that have been surrendered
for repayment at the option of the Holder, except the portion if any,
thereof not to be so repaid.
Conversion and Exchange
If any Debt Securities will, by their terms, be convertible
into or exchangeable for Common Stock or other Securities, the
Prospectus Supplement relating thereto will set forth the terms and
conditions of such conversion or exchange, including the conversion
price or exchange ratio (or the method of calculating the same), the
conversion or exchange period (or the method of determining the same),
whether conversion or exchange will be mandatory or at the option of
the Holder or the Company, provisions for adjustment of the conversion
price or the exchange ratio and provisions affecting conversion or
exchange in the event of the redemption of such Debt Securities. Such
terms may also include provision under which the number of shares of
Common Stock or the number of other Securities to be received by the
Holders of such Debt Securities upon such conversion or exchange would
be calculated with reference to the market price of the Common Stock
or such other Securities as of a time stated in the Prospectus
Supplement.
Global Securities
The Debt Securities of a series may be issued in whole or in
part in the form of one or more Global Securities (as such term is
defined below), which will be deposited with, or on behalf of, a
depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such case, one or more Global Securities
will be issued in a denomination or aggregate denomination equal to
the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Global Securities. Unless and until it is exchanged in whole or in
part for the individual Debt Securities represented thereby, a Global
Security may not be registered for transfer or exchange except (i) as
a whole by the Depositary for such Global Security to a nominee of
such Depositary, by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or a nominee
of such Depositary to a successor Depositary or a nominee of such
successor Depositary, and (ii) in any other circumstances described in
the Prospectus Supplement applicable thereto. The term "Global
Security," when used with respect to any series of Debt Securities,
means a Debt Security that is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, which shall be registered in
8
the name of the Depositary or its nominee and which shall represent,
and shall be denominated in an amount equal to the aggregate principal
amount of, all of the Outstanding Debt Securities of such series or
any portion thereof, in either case having the same terms, including,
without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining
interest.
The specific terms of the depositary arrangement with
respect to any portion of a series of Debt Securities to be
represented by a Global Security will be described in the Prospectus
Supplement applicable thereto. The Company expects that the following
provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities that are to be represented by a Global
Security to be deposited with or on behalf of a Depositary will be
represented by a Global Security registered in the name of such
Depositary or its nominee. Upon the issuance of such Global Security,
and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit on its
book entry registration and transfer system the respective principal
amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Depositary
or its nominee ("participants"). The accounts to be credited will be
designated by the underwriters or agents of such Debt Securities or,
if such Debt Securities are offered and sold directly by the Company,
by the Company. Ownership of beneficial interests in such Global
Security will be limited to participants or Persons that may hold
interests through participants. Ownership of beneficial interests by
participants in such Global Security will be shown on, and the
transfer of that ownership interest will be effected only through,
records maintained by the Depositary or its nominee for such Global
Security. Ownership of beneficial interests in such Global Security
by Persons that hold through participants will be shown on, and the
transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The
laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated
form. The foregoing limitations and such laws may impair the ability
to transfer beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its
nominee, is the registered owner of such Global Security, such
Depositary or such nominee, as the case may be, will be considered the
sole owner or Holder of the Debt Securities represented by such Global
Security for all purposes under the Indenture applicable thereto.
Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be
entitled to have Debt Securities of the series represented by such
Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities of such
9
series in certificated form and will not be considered the Holders
thereof for any purposes under the Indenture applicable thereto.
Accordingly, each Person owning a beneficial interest in such Global
Security must rely on the procedures of the Depositary and, if such
Person is not a participant, on the procedures of the participant
through which such Person owns its interest to exercise any rights of
a Holder of Debt Securities under the Indenture applicable thereto.
The Company understands that under existing industry practices, if the
Company requests any action of Holders or an owner of a beneficial
interest in such Global Security desires to give any notice or take
any action a Holder is entitled to give or take under the Indenture
applicable thereto, then the Depositary would authorize the
participants to give such notice or take such action, and participants
would authorize beneficial owners owning through such participants to
give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global
Security will be payable in the manner described in the applicable
Prospectus Supplement.
Consolidation, Merger, Conveyance, Transfer or Lease
Each Indenture provides that the Company shall not
consolidate with or merge into any other Person or convey, transfer or
lease all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis to any other
Person, unless the corporation formed by such consolidation, or into
which the Company is merged, or the Person which acquires by
conveyance or transfer or which leases such properties and assets
(collectively, the "Survivor") assumes by supplemental indenture all
the obligations of the Company under such Indenture and the Debt
Securities issued thereunder, no Default or Event of Default shall
exist immediately after giving effect to the transaction, and the
Survivor is a corporation, limited liability company, partnership or
trust organized and validly existing under the laws of the United
States of America, any state thereof, or the District of Columbia.
Acceleration of Maturity
If an Event of Default occurs and is continuing with respect
to Debt Securities of a particular series, the Trustee or the Holders
of not less than 25% in principal amount of Outstanding Debt
Securities of that series may declare the Outstanding Debt Securities
of that series due and payable immediately.
At any time after a declaration of acceleration with respect
to Debt 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 therefor, the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series by written notice to the
Company and such Trustee, may rescind and annul such declaration and
10
its consequences if: (i) the Company has paid or deposited with the
Trustee a sum sufficient to pay (in the Currency in which the Debt
Securities of such series are payable, except as otherwise specified
pursuant to the applicable Indenture): (a) all overdue interest on all
Outstanding Debt Securities of that series and any related Coupons,
(b) all unpaid principal of (and premium, if any, on) any such Debt
Securities which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal at the rate or
rates prescribed therefor in such Debt Securities, (c) to the extent
lawful, interest on overdue interest at the rate or rates prescribed
therefor in such Debt Securities, and (d) all sums paid or advanced by
such Trustee and the reasonable compensation, expenses, disbursements
and advances of such Trustee, its agents and counsel; and (2) all
Events of Default with respect to Debt Securities of that series,
other than the non-payment of amounts of principal of (or premium, if
any, on) or interest on such Debt Securities which have become due
solely by such declaration of acceleration, have been cured or waived.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
The Holders of not less than a majority in principal amount
of the Outstanding Debt Securities of any series may, on behalf of the
Holders of all the Debt Securities of such series and any related
Coupons, waive any past default under the applicable Indenture with
respect to such series and its consequences, except a default (i) in
the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or any related Coupon, or (ii) in
respect of a covenant or provision that cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of
such series affected thereby.
Subject to the provisions in each Indenture relating to the
duties of the Trustee thereunder, if an Event of Default with respect
to Debt Securities of a particular series occurs and is continuing,
such Trustee shall be under no obligation to exercise any of its
rights or powers under the applicable Indenture at the request or
direction of any of the Holders of Debt Securities of such series,
unless such Holders shall have offered to such Trustee reasonable
indemnity and security against the costs, expenses and liabilities
that might be incurred by it in compliance with such request. Subject
to such provisions for the indemnification of the Trustee, the Holders
of a majority in principal amount of the Outstanding Debt Securities
of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee under the applicable Indenture, or exercising any trust or
power conferred on the Trustee with respect to the Debt Securities of
that series. The Trustee may refuse to follow directions in conflict
with law or the Indenture that may involve the Trustee in personal
liability or may be unduly prejudicial to Holders not joining therein.
11
Modification or Waiver
Modification and amendment of each of the Indentures may be
made by the Company and the applicable Trustee with the consent of the
Holders of not less than a majority in principal amount of all
Outstanding Debt Securities thereunder of any series that are affected
by such modification or amendment; provided that no such modification
or amendment may, without the consent of the Holder of each
Outstanding Debt Security of such series: (i) change the Stated
Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any Debt Security of such
series, (ii) reduce the principal amount or the rate of interest on or
any Additional Amounts payable in respect of, or any premium payable
upon the redemption of, any Debt Security of such series, (iii) change
any obligation of the Company to pay Additional Amounts in respect of
any Debt Security of such series, (iv) reduce the amount of principal
of a Debt Security of such series that is an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof, (v) change the redemption
provisions of any Debt Security, (vi) adversely affect any right of
repayment at the option of the Holder of any Debt Security of such
series, (vii) change the place or currency of payment of principal of,
or any premium or interest on, any Debt Security of such series,
(viii) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof or any Redemption
Date or Repayment Date therefor, (ix) reduce the above-stated
percentage of Holders of Outstanding Debt Securities of such series
necessary to modify or amend such Indenture or to consent to any
waiver thereunder or reduce the requirements for voting or quorum
described below, or (x) modify the foregoing requirements or reduce
the percentage of Outstanding Debt Securities of such series necessary
to waive any past default.
Modification and amendment of each Indenture may be made by
the Company and the Trustee thereunder without the consent of any
Holder, for any of the following purposes: (i) to evidence the
succession of another Person to the Company as obligor under such
Indenture; (ii) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Debt Securities; (iii) to add
Events of Default for the benefit of the Holders of all or any series
of Debt Securities; (iv) to add or change any provisions of such
Indenture to facilitate the issuance of Bearer Securities; (v) to
change or eliminate any provisions of such Indenture, provided that
any such change or elimination shall become effective only when there
are no Outstanding Debt Securities of any series created prior thereto
that is entitled to the benefit of such provision; (vi) to establish
the form or terms of Debt Securities of any series and any related
Coupons; (vii) to secure the Debt Securities; (viii) to provide for
the acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under such Indenture by more than one
Trustee; and (ix) to close such Indenture with respect to the
authentication and delivery of additional series of Debt Securities,
12
to cure any ambiguity, defect or inconsistency in such Indenture or to
amend or supplement any provision contained in such Indenture or in
any supplemental indenture, provided such action does not adversely
affect the interests of Holders of Debt Securities of any series under
such Indenture in any material respect.
Each Indenture contains provisions for convening meetings of
the Holders of Debt Securities of a series. Such a meeting may be
called at any time by the applicable Trustee at its discretion or by
such Trustee pursuant to a request made to such Trustee by the Company
or the Holders of at least 10% in principal amount of the Outstanding
Debt Securities under such Indenture, but in any case, notice shall be
given as provided in such Indenture. Except for any consent that must
be given by the Holder of each Debt Security affected thereby, as
described above, any resolution presented at a meeting or adjourned
meeting duly reconvened at which a quorum is present may be adopted by
the affirmative vote of the Holders of a majority in principal amount
of the Debt Securities of that series Outstanding; provided, however,
that, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that
may be made, given or taken by the Holders of a specified percentage
that is less than a majority in principal amount of Debt Securities of
a series Outstanding may be adopted at a meeting or adjourned meeting,
duly reconvened and at which a quorum is present, by the affirmative
vote of the Holders of such specified percentage in principal amount
of the Debt Securities of that series Outstanding. Any resolution
passed or decision taken at any meeting of Holders of Debt Securities
of any series duly held in accordance with the applicable Indenture
will be binding on all Holders of Debt Securities of that series and
the related Coupons. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will consist of persons
entitled to vote a majority in principal amount of the Debt Securities
of a series Outstanding; provided, however, that, if any action is to
be taken at such meeting with respect to a consent or waiver that may
be given by the Holders of not less than a specified percentage in
principal amount of the Debt Securities of a series Outstanding, the
Persons entitled to vote such specified percentage in principal amount
of the Debt Securities of such series Outstanding will constitute a
quorum. Notwithstanding the foregoing provisions, if any action is to
be taken at a meeting of Holders of Debt Securities of any series with
respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that the applicable Indenture
expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt
Securities affected thereby, or of the Holders of such series and one
or more additional series, then (i) there shall be no minimum quorum
requirement for such meeting, and (ii) the principal amount of the
Outstanding Debt Securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent, waiver or
13
other action has been made, given or taken under the applicable
Indenture.
Financial Information
So long as any of the Debt Securities are outstanding, the
Company will file with the Commission, to the extent permitted under
the Exchange Act, the annual reports, quarterly reports and other
documents otherwise required to be filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act as if the Company were
subject to such Sections, and the Company will also provide to all
Holders and file with the Trustees copies of such reports and
documents within 15 days after it files them with the Commission or,
if filing such reports and documents by the Company with the
Commission is not permitted under the Exchange Act, within 15 days
after it would otherwise have been required to file such reports and
documents if permitted, in each case at the Company's cost.
Defeasance
Each Indenture provides that the Company may elect either
(a) to defease and be discharged from any and all obligations with
respect to any series of the Debt Securities issued thereunder and any
related Coupons (except for the obligation to pay Additional Amounts,
if any, upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities
and the obligations to register the transfer or exchange of Debt
Securities of such series and any related Coupons, to replace
temporary or mutilated, destroyed, lost or stolen Debt Securities and
any related Coupons, to maintain an office or agency in respect of
such series of Debt Securities and any related Coupons and to hold
moneys for payment in trust) ("defeasance") or (b) to be released from
its obligations with respect to any series of such Debt Securities and
any related Coupons with respect to certain covenants thereunder, and
any omission to comply with such obligations shall not constitute a
Default or an Event of Default with respect to such series of Debt
Securities and any related Coupons ("covenant defeasance"), in either
case upon the irrevocable deposit by the Company with the Trustee (or
other qualifying trustee), in trust, of an amount, in such Currency in
which such series of Debt Securities and any related Coupons are then
specified as payable at Stated Maturity, or Government Obligations (as
defined below), or both, applicable to such series of Debt Securities
and any related Coupons (with such applicability being determined on
the basis of the currency, currency unit or composite currency in
which such series of Debt Securities are then specified as payable at
Stated Maturity), which through the scheduled payment of principal and
interest in accordance with their terms, will provide money in an
amount sufficient to pay the principal of (and premium, if any) and
interest, if any, on such series of Debt Securities and any related
Coupons, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
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Such a trust may only be established if, among other things,
the Company has delivered to the Trustee an Opinion of Counsel (as
specified in the applicable Indenture) to the effect that the Holders
of such series of Debt Securities and any related Coupons will not
recognize income gain or loss for United States federal income tax
purposes as a result of such defeasance or covenant defeasance and
will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred;
provided that, such Opinion of Counsel, in the case of defeasance
under clause (a) above, must refer to and be based upon a revenue
ruling of the Internal Revenue Service or a change in applicable
United States federal income tax law occurring after the date of the
applicable Indenture.
"Government Obligations" means securities that are (i)
direct obligations of the government that issued the Currency in which
the Debt Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged, or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government that issued the Currency
in which the Debt Securities of such series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that
(except as required by law), such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest in or
principal of the Government Obligation evidenced by such depository
receipt.
Unless otherwise provided in the Prospectus Supplement, if,
after the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance relating thereto with respect
to the Debt Securities of any series, (i) the Holder of a Debt
Security of such series is entitled to and does elect, pursuant to the
terms of such Debt Security, to receive payment in a currency other
than that in which such deposit has been made in respect of such Debt
Security or (ii) the currency in which such deposit has been made in
respect of any Debt Security of such series ceases to be used by its
government of issuance, then the indebtedness represented by such Debt
Security shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if
any) and interest, if any, on such Debt Security as they become due
out of the proceeds yielded by converting the amount so deposited in
respect of such Debt Security into the Currency in which such Debt
15
Security becomes payable as a result of such election or such
cessation of usage based on the applicable Market Exchange Rate.
Unless otherwise provided in the Prospectus Supplement, all payments
of principal of (and premium, if any) and interest, if any, and
Additional Amounts, if any, on any Debt Security that is payable in a
Currency other than Dollars that ceases to be used by its government
of issuance shall be made in Dollars.
In the event the Company effects covenant defeasance with
respect to (i) any Debt Securities and any related Coupons and (ii)
such Debt Securities and any related Coupons are declared due and
payable because of the occurrence of any Event of Default, other than
an Event of Default with respect to any covenant for which there has
been defeasance, the Currency and/or Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on such Debt
Securities and any related Coupons at the time of their Stated
Maturity but may not be sufficient to pay amounts due on such Debt
Securities and any related Coupons at the time of the acceleration
resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of
acceleration.
The Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with
respect to the Debt Securities of or within a particular series and
any related Coupons.
Information Concerning the Trustee
The Trustee, prior to default, undertakes to perform only
such duties as are specifically set forth in the applicable Indenture
and, after default, shall exercise the same degree of care as a
prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provision, the Trustee is under no
obligation to exercise any of the powers vested in it by the
applicable Indenture at the request of any Holder of Debt Securities,
unless offered reasonable indemnity by such Holder against the costs,
expenses and liabilities which might be incurred thereby. The Trustee
is not required to expand or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if the
Trustee reasonably believes that repayment or adequate indemnity is
not reasonably assured to it.
The Chase Manhattan Bank (National Association) ("Chase") is
the Trustee under the Senior Indenture and the Subordinated Indenture.
Chase is also the agent for the lenders, and a lender, under certain
revolving credit facilities with the Company which, as of the date
hereof, permit an aggregate borrowing of up to $750 million (subject
to the terms and conditions of such facilities). Chase Securities,
Inc., an affiliate of Chase, is as of the date hereof an agent with
respect to distribution of the Senior Debt Securities. In addition,
16
the Company and certain of its affiliates maintain other banking and
borrowing arrangements with Chase, and Chase may perform additional
banking services for, or transact other banking business with, the
Company in the future.
The Trustee may be deemed to have a conflicting interest for
purposes of the Trust Indenture Act of 1939 and may be required to
resign as Trustee if (i) there is an Event of Default under the
Indenture under which its acts as Trustee and (ii) among other things
(a) the Trustee is a trustee under another indenture of the Company
under which securities of the Company are outstanding, (b) the Trustee
is a trustee for more than one outstanding series of Debt Securities
under a single Indenture, (c) the Trustee is a creditor of the
Company, or (d) the Trustee or an affiliate of the Trustee acts as
underwriter or agent for the Company.
The Indenture provides that an alternative Trustee may be
appointed by the Company with respect to any particular series of Debt
Securities. Any such appointment will be described in the Prospectus
Supplement relating to such series of Debt Securities.
Governing Law
The Indentures and the Debt Securities will be governed by,
and construed in accordance with, the internal laws of the State of
New York.
Miscellaneous
The Company will have the right at all times to assign any
of its respective rights or obligations under the Indentures to a
direct or indirect wholly-owned subsidiary of the Company; provided,
that, in the event of any such assignment, the Company will remain
liable for all of their respective obligations. The Indentures will
be binding upon and inure to the benefit of the parties thereto and
their respective successors and assigns.
PARTICULAR TERMS OF THE SENIOR DEBT SECURITIES
The following description of the Senior Debt Securities sets
forth certain general terms and provisions of the Senior Debt
Securities to which any Prospectus Supplement may relate. The
particular terms of the Senior Debt Securities offered by any
Prospectus Supplement, and the extent, if any, to which such general
provisions may not apply to the Senior Debt Securities so offered,
will be described in the Prospectus Supplement relating to such Senior
Debt Securities.
17
General
Reference is made to the Prospectus Supplement relating to a
particular issuance of a series of Senior Debt Securities being
offered for, among other things, the following terms thereof: (1) the
title of the Senior Debt Securities of such series; (2) any limit on
the aggregate principal amount of such Senior Debt Securities; (3) the
date or dates on which the principal of such Senior Debt Securities
will be payable; (4) the rate or rates at which such Senior Debt
Securities will bear interest, or the method by which such rate or
rates shall be determined, and the date such interest shall accrue, or
the method by which such date or dates shall be determined; (5) the
dates on which such interest will be payable and the Regular Record
Dates for any Interest Payment Dates and the basis on which interest
shall be calculated if other than on the basis of a 360-day year of
twelve 30-day months; (6) the dates, if any, on which, and the price
or prices at which, such Senior Debt Securities may, pursuant to any
mandatory or optional sinking fund provisions, be redeemed by the
Company and other terms and provisions of such sinking fund; (7) the
date, if any, after which, and the price or prices at which, such
Senior Debt Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of the Company or of the Holder
thereof and other terms and provisions of such optional redemption;
(8) any provisions in modification of, in addition to or in lieu of
any of the provisions of Article Fourteen of the Senior Indenture
relating to defeasance and covenant defeasance; (9) the percentage of
the principal amount at which such Senior Debt Securities will be
issued and, if other than the principal amount thereof, the portion of
the principal amount payable upon acceleration of the maturity
thereof, or the method by which such portion shall be determined; (10)
if other than Dollars, the Currency in which payment of the principal
of (and premium, if any, on) or interest, if any, on such Senior Debt
Securities shall be payable or denominated; (11) whether the amount of
payments of principal of (and premium, if any, on) or interest, if
any, on such Senior Debt Securities may be determined with reference
to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined; (12) whether and under what
circumstances the Company will pay Additional Amounts, as contemplated
by Section 1005 of the Senior Indenture, on such Senior Debt
Securities to any Holder who is not a United States person (including
any modification to the definition of such term as contained in the
Senior Indenture as originally executed) with respect to any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Senior Debt Securities rather than pay
such Additional Amounts (and the terms of any such option); (13) any
deletions from, modifications of or additions to the Events of Default
or covenants of the Company with respect to such Senior Debt
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
and (14) any other terms of such Senior Debt Securities. For a
18
description of the terms of any series of Senior Debt Securities,
reference must be made to both the Prospectus Supplement relating
thereto and the description of Debt Securities set forth herein.
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Senior Debt Securities will be issued in Dollars
in fully registered form, without Coupons.
Denominations
Unless otherwise indicated in the Prospectus Supplement
relating thereto, Senior Debt Securities that are Registered
Securities will be issuable in denominations of $1,000 and integral
multiples of $1,000, and Senior Debt Securities that are Bearer
Securities will be issuable in denominations of $5,000.
Ranking of Senior Debt Securities
The Senior Debt Securities will rank pari passu with all
other Senior Debt Securities and all other unsecured and
unsubordinated indebtedness of the Company. The Company presently has
no subordinated debt outstanding. Since the Company is a holding
company, the right of the Company, and hence the right of creditors of
the Company (including the Holders), to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims
of creditors of such subsidiary, except to the extent that claims of
the Company itself as a creditor of such subsidiary may be recognized.
The Indenture does not limit the amount of unsecured indebtedness
which the Company or its subsidiaries may incur. Substantially all of
the consolidated accounts payable represent obligations of the
Company's subsidiaries, and as of September 30, 1995, the aggregate
principal amount of money borrowed by the Company's subsidiaries was
approximately $83.7 million (the current portion of which was
approximately $71.1 million).
Limitation on Liens
Pursuant to the Senior Indenture, so long as any of the
Senior Debt Securities thereunder or Coupons appertaining thereto
shall remain outstanding, the Company will not, and will not permit
any of its Subsidiaries (as defined below) to, create, incur, assume
or suffer to exist any Lien (as defined below) of any kind upon any of
its or their property or assets, now owned or hereafter acquired,
without making effective provision whereby all of the Senior Debt
Securities shall be directly secured equally and ratably with the
obligation or liability secured by such Lien, except for:
(i) Liens existing as of the date of the Senior Indenture;
(ii) Liens, including Sale and Lease-back Transactions (as
defined below), on any property acquired, constructed or improved
19
after the date of the Senior Indenture, which are created or
assumed contemporaneously with, or within 180 days after, such
acquisition or completion of such construction or improvement, or
within six months thereafter pursuant to a commitment for
financing arranged with a lender or investor within such 180-day
period, to secure or provide for the payment of all or a portion
of the purchase price of such property or the cost of such
construction or improvement incurred after the date of the Senior
Indenture (or prior to the date of such Indenture in the case of
any construction or improvement which is at least 40% completed
at the date of such Indenture) or, in addition to Liens
contemplated by clauses (iii) and (iv) below, Liens on any
property existing at the time of acquisition thereof (including
acquisition through merger or consolidation); provided, that any
such Lien (other than a Sale and Lease-back Transaction meeting
the requirements of this clause) does not apply to any property
theretofore owned by the Company or a Subsidiary other than, in
the case of any such construction or improvement, and theretofore
unimproved real property on which the property so constructed or
the improvement, is located;
(iii) Liens existing on any property of a Person at the
time such Person is merged with or into,or consolidates with, the
Company or a Subsidiary;
(iv) Liens on any property of a Person (including, without
limitation, shares of stock or debt securities) or its
subsidiaries existing at the time such Person becomes a
Subsidiary, is otherwise acquired by the Company or a Subsidiary
or becomes a successor to the Company pursuant to Section 802 of
the Senior Indenture;
(v) Liens to secure an obligation or liability of a
Subsidiary to the Company or to another Subsidiary;
(vi) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any
State thereof, to secure partial progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of constructing or
improving the property subject to such Liens;
(vii) Liens to secure tax-exempt private activity bonds
under the Internal Revenue Code of 1986, as amended;
(viii) Liens arising out of or in connection with a Sale
and Lease-back Transaction if the net proceeds of such Sale and
Lease-back Transaction are at least equal to the fair value (as
determined by the Board of Directors, the Chairman of the Board,
the Vice Chairman of the Board, the President or the principal
20
financial officer of the Company) of the property subject to such
Sale and Lease-back Transaction;
(ix) Liens for the sole purpose of extending, renewing or
replacing in whole or in part indebtedness secured by any Lien
referred to in the foregoing clauses (i) to (viii), inclusive, or
in this clause (ix); provided, however, that the principal amount
of indebtedness secured thereby shall not exceed the principal
amount of indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property
which secured the Lien so extended, renewed or replaced (plus
improvements on such property);
(x) Liens arising out of or in connection with a Sale and
Lease-back Transaction in which the net proceeds of such Sale and
Lease-back Transaction are less than the fair value (as
determined by the Board of Directors, the Chairman of the Board,
the Vice Chairman of the Board, the President or the principal
financial officer of the Company) of the property subject to such
Sale and Lease-back Transaction if the Company provides in a
Board Resolution that it shall, and in any such case the Company
covenants that it will, within 180 days of the effective date of
any such arrangement (or in the case of (C) below, within six
months thereafter pursuant to a firm purchase commitment entered
into within such 180-day period), apply an amount equal to the
fair market value (as so determined) of such property (A) to the
redemption of Senior Debt Securities of any series which are, by
their terms, at the time redeemable or the purchase and
retirement of Senior Debt Securities, if permitted, (B) to the
payment or other retirement of Funded Debt (as defined below)
incurred or assumed by the Company which ranks senior to or pari
passu with the Senior Debt Securities or of Funded Debt incurred
or assumed by any Subsidiary (other than, in either case, Funded
Debt owned by the Company or any Subsidiary) or (C) to the
purchase of property (other than the property involved in such
sale);
(xi) Liens on accounts receivable (and related general
intangibles and instruments) arising out of or in connection with
a sale or transfer by the Company or such Subsidiary of such
accounts receivable;
(xii) Permitted Liens (as defined below); and
(xiii) Liens other than those referred to in clauses (i)
through (xii) above which are created, incurred or assumed after
the date of the Senior Indenture (including those in connection
with purchase money mortgages, Capitalized Lease Obligations (as
defined below) and Sale and Lease-back Transactions), provided
that the aggregate amount of indebtedness secured by such Liens,
21
or, in the case of Sale and Lease-back Transactions, the Value
(as defined below) of such Sale and Lease-back Transactions,
referred to in this clause (xiii), does not exceed 15% of
Consolidated Total Assets (as defined below).
The term "Capitalized Lease Obligations" means, as to any
Person, the obligations of such Person to pay rent or other amounts
under a lease of (or other agreement conveying the right to use) real
or personal property which obligations are required to be classified
and accounted for as capital lease obligations on a balance sheet of
such Person under generally accepted accounting principles and, for
purposes of the Senior Indenture, the amount of such obligations at
any date shall be the capitalized amount thereof at such date,
determined in accordance with generally accepted accounting
principles.
The term "Consolidated Total Assets" means the total of all
the assets appearing on the consolidated balance sheet of the Company
and its Subsidiaries determined in accordance with generally accepted
accounting principles applicable to the type of business in which the
Company and such Subsidiaries are engaged, and may be determined as of
a date not more than 60 days prior to the happening of the event for
which such determination is being made.
The term "Funded Debt" means any indebtedness which by its
terms matures at or is extendable or renewable at the sole option of
the obligor without requiring the consent of the obligee to a date
more than 12 months after the date of the creation of such
indebtedness.
The term "Lien" means, as to any Person, any mortgage, lien,
collateral assignment, pledge, charge, security interest or other
encumbrance in respect of or on, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person
under any conditional sale or other title retention agreement or
Capitalized Lease Obligation, purchase money mortgage or Sale and
Lease-back Transaction with respect to, any property or asset
(including without limitation income and rights thereto) of such
Person (including without limitation capital stock of any Subsidiary
of such Person), or the signing by such Person and filing of a
financing statement which names such Person as debtor, or the signing
by such Person of any security agreement agreeing to file, or
authorizing any other party as the secured party thereunder to file,
any financing statement.
The term "Permitted Liens" means mechanics, materialmen,
landlords, warehousemen and carriers liens and other similar liens
imposed by law securing obligations incurred in the ordinary course of
business which are not past due or which are being contested in good
faith by appropriate proceedings and for which appropriate reserves
have been established; Liens under workmen's compensation,
unemployment insurance, social security or similar legislation; Liens,
22
deposits, or pledges to secure the performance of bids, tenders,
contracts (other than contracts for the payment of money), leases,
public or statutory obligations, surety, stay, appeal, indemnity,
performance or other similar bonds, or similar obligations arising in
the ordinary course of business; judgment and other similar Liens
arising in connection with court proceedings, provided the execution
or other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith and
by appropriate proceedings; and easements, rights of way, restrictions
and other similar encumbrances which, in the aggregate, do not
materially interfere with the occupation, use and enjoyment by the
Company or any Subsidiary of the property or assets encumbered thereby
in the normal course of its business or materially impair the value of
the property subject thereto.
The term "Sale and Lease-back Transaction" means, with
respect to any Person, any direct or indirect arrangement with any
other Person or to which any other Person is a party, providing for
the leasing to such first Person of any property, whether now owned or
hereafter acquired (except for temporary leases for a term, including
any renewal thereof, of not more than three years and except for
leases between the Company and a Subsidiary or between Subsidiaries),
which has been or is to be sold or transferred by such first Person to
such other Person or to any Person to whom funds have been or are to
be advanced by such other Person on the security of such property.
The term "Subsidiary" means any corporation of which at the
time of determination the Company or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the shares of Voting
Stock.
The term "Value" means, with respect to a Sale and Lease-
back Transaction, as of any particular time, the amount equal to the
greater of (i) the net proceeds from the sale or transfer of the
property leased pursuant to such Sale and Lease-back Transaction or
(ii) the fair value in the opinion of the Board of Directors, the
Chairman of the Board, the Vice Chairman of the Board, the President
or the principal financial officer of the Company of such property at
the time of entering into such Sale and Lease-back Transaction, in
either case multiplied by a fraction, the numerator of which shall be
equal to the number of full years of the term of the lease remaining
at the time of determination and the denominator of which shall be
equal to the number of full years of such term, without regard to any
renewal or extension options contained in the lease.
The term "Voting Stock" means stock of a corporation of the
class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers or trustees of such corporation provided that, for the
purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered
voting stock whether or not such event shall have happened.
23
Events of Default
The Senior Indenture provides, with respect to any series of
Senior Debt Securities outstanding thereunder, that any one or more of
the following events that has occurred and is continuing shall
constitute an Event of Default: (i) default in the payment of any
interest upon any Senior Debt Security of that series, or of any
Coupon appertaining thereto, when the same becomes due and payable and
continues for 30 days; (ii) default in the payment of the principal of
or any premium on any Senior Debt Security of that series when due,
whether at maturity, upon redemption by declaration or otherwise;
(iii) default in the deposit of any sinking fund payment, when and as
due by the terms of any Senior Debt Senior Securities of that series;
(iv) default in the performance or breach of any covenant or agreement
of the Company in the Senior Indenture with respect to any Senior Debt
Security of that series (other than those referred to in (i), (ii) and
(iii) above) and continuance thereof for 60 days after written notice
to the Company from the Trustee or from the holders of at least 25% of
the Outstanding Debt Securities of that series; (v) certain events in
bankruptcy, insolvency or reorganization of the Company or a Principal
Subsidiary (as defined below); (vi) an event of default as defined in
any mortgage, indenture or instrument under which there may be issued,
or by which there may be secured or evidenced, any indebtedness of the
Company or any Principal Subsidiary for money borrowed, whether such
indebtedness now exists or shall hereafter be created, shall happen
and shall result in such indebtedness in principal amount in excess of
$10,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such indebtedness
shall not have been discharged, within 30 days after written notice to
the Company from the Trustee or from the Holders of at least 25% of
the Outstanding Debt Securities of that series; and (vii) any other
Event of Default provided with respect to Senior Debt Securities of
that series.
The term "Principal Subsidiary" means, as of any date of
determination thereof, any Subsidiary the consolidated net revenues of
which for the 12-month period ending on the last day of the month then
most recently ended exceed 10% of consolidated net revenues of the
Company for such period, determined on a pro forma basis after giving
effect to any acquisition or disposition of a Subsidiary or a business
effected on or prior to the determination date and after the beginning
of such 12-month period (including acquisition and dispositions
accomplished through a purchase or sale of assets or through a merger
or consolidation).
The Company is required to file annually with the Trustee
under the Senior Indenture an officer's certificate as to the
Company's compliance with all conditions and covenants under such
Indenture. The Senior Indenture provides that the Trustee thereunder
may withhold notice to the Holders of Senior Debt Securities of any
default, except in the case of a default in the payment of the
24
principal of (or premium), if any, or interest on any Senior Debt
Securities or the payment of any sinking fund installment with respect
to such Senior Debt Securities if it considers it in the interests of
the Holders of such Senior Debt Securities to do so.
PARTICULAR TERMS OF THE SUBORDINATED DEBT SECURITIES
The following description of the Subordinated Debt
Securities sets forth the general terms and provisions of the
Subordinated Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Subordinated Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may not apply will be described in the
Prospectus Supplement relating to such Subordinated Debt Securities.
General
Reference is made to the Prospectus Supplement relating to a
particular issuance of a series of Subordinated Debt Securities being
offered for, among other things, the following terms thereof: (1) the
title of the Subordinated Debt Securities of such series; (2) any
limit on the aggregate principal amount of such Subordinated Debt
Securities; (3) the percentage of the principal amount at which such
Subordinated Debt Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon acceleration of the maturity thereof, or the method by
which such portion shall be determined; (4) the date or dates, on
which the principal of such Subordinated Debt Securities will be
payable; (5) the rights, if any, to defer payments of interest on the
Subordinated Debt Securities by extending the interest payment period,
and the duration of such extensions; (6) the subordination terms of
the Subordinated Debt Securities of such series; (7) the rate or rates
at which such Subordinated Debt Securities will bear interest, or the
method by which such rate or rates shall be determined, and the date
such interest shall accrue, or the method by which such date or dates
shall be determined; (8) the dates on which such interest will be
payable and the Regular Record Dates for any Interest Payment Dates
and the basis on which interest shall be calculated if other than on
the basis of a 360-day year of twelve 30-day months; (9) the dates, if
any, on which, and the price or prices at which, such Subordinated
Debt Securities may, pursuant to any mandatory or optional sinking
fund provisions, be redeemed by the Company and other terms and
provisions of such sinking fund; (10) the date, if any, after which,
and the price or prices at which, such Subordinated Debt Securities
may, pursuant to any optional redemption provisions, be redeemed at
the option of the Company or of the Holder thereof and other terms and
provisions of such optional redemption; (11) any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen of the Subordinated Indenture relating to defeasance
and covenant defeasance; (12) whether and under what circumstances
the Company will pay Additional Amounts, as contemplated by
25
Section 1005 of the Subordinated Indenture, on such Subordinated Debt
Securities to any Holder who is not a United States person (including
any modification to the definition of such term as contained in the
Subordinated Indenture as originally executed) with respect to any
tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Subordinated Debt Securities
rather than pay such Additional Amounts (and the terms of any such
option); (13) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to such
Subordinated Debt Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein; (14) if other than Dollars, the Currency in which
payment of the principal of (and premium, if any, on) or interest, if
any, on such Subordinated Debt Securities shall be payable or
denominated; (15) whether the amount of payments of principal of (and
premium, if any, on) or interest, if any, on such Subordinated Debt
Securities may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity indices or
other indices), and the manner in which such amounts shall be
determined; and (16) any other terms of such Subordinated Debt
Securities. For a description of the terms of any series of
Subordinated Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and to the description of Debt
Securities set forth herein.
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Subordinated Debt Securities will be issued in
Dollars in fully registered form, without Coupons.
Denominations
Unless otherwise indicated in the Prospectus Supplement
relating thereto, Subordinated Debt Securities that are Registered
Securities will be issuable in denominations of $25 and integral
multiples of $25 and Subordinated Debt Securities that are Bearer
Securities will be issuable in denominations of $5,000.
Subordination
The Subordinated Debt Securities will be subordinated to the
prior payment in full of (i) the Senior Debt Securities and all other
unsecured and unsubordinated indebtedness of the Company ranking pari
passu with the Senior Debt Securities and (ii) certain other
indebtedness of the Company to the extent set forth in the Prospectus
Supplement relating to such Subordinated Debt Securities.
Events of Default
The Subordinated Indenture provides, with respect to any
series of Subordinated Debt Securities outstanding thereunder, that
any one or more of the following events that has occurred and is
26
continuing shall constitute an Event of Default: (i) default in the
payment of any interest upon any Subordinated Debt Security of that
series, or of any Coupon appertaining thereto, when the same becomes
due and payable and continues for 60 days; provided that, a valid
extension of the interest payment period by the Company in accordance
with the terms of any supplemental indenture shall not constitute a
default in the payment of interest or such Coupon for this purpose;
(ii) default in the payment of the principal of or any premium on any
Subordinated Debt Security of that series when due, whether at
maturity, upon redemption by declaration or otherwise; provided that a
valid extension by the Company of the maturity of the Subordinated
Debt Securities of such series in accordance with the terms of any
supplemental indenture shall not constitute a default in the payment
of principal or any premium for this purpose; (iii) default in the
deposit of any sinking fund payment, when and as due by the terms of
any Subordinated Debt Securities of that series; (iv) default in the
performance or breach of any covenant or agreement of the Company in
the Subordinated Indenture with respect to any Subordinated Debt
Security of that series (other than those referred to in (i), (ii) and
(iii) above), and continuance thereof for 90 days after written notice
to the Company from the Trustee or from the holders of at least 25% of
the Outstanding Debt Securities of that series; (v) certain events in
bankruptcy, insolvency or reorganization of the Company; (vi) an event
of default as defined in any mortgage, indenture or instrument under
which there may be issued, or by which there may be secured or
evidenced, any indebtedness of the Company for money borrowed, whether
such indebtedness now exists or shall hereafter be created, shall
happen and shall result in such indebtedness in principal amount in
excess of $15,000,000 becoming or being declared due and payable prior
to the date on which it would otherwise become due and payable, and
such acceleration shall not be rescinded or annulled, or such
indebtedness shall not have been discharged, within 30 days after
written notice to the Company from the Trustee or from the Holders of
at least 25% of the Outstanding Debt Securities of that series; and
(vii) any other Event of Default provided with respect to Subordinated
Debt Securities of that series. The Company is required to file
annually with the Trustee under the Subordinated Indenture an
officer's certificate as to the Company's compliance with all
conditions and covenants under such Indenture. The Subordinated
Indenture provides that the Trustee thereunder may withhold notice to
the Holders of Subordinated Debt Securities of any default, except in
the case of a default in the payment of the principal of (or premium),
if any, or interest on any Subordinated Debt Securities or the payment
of any sinking fund installment with respect to such Subordinated Debt
Securities if it considers it in the interests of the Holders of such
Subordinated Debt Securities to do so.
27
DESCRIPTION OF CAPITAL STOCK
Under the Company's Restated Certificate of Incorporation
(the "Restated Certificate of Incorporation"), the Company is
authorized to issue 400,000,000 shares of Common Stock, par value
$1.00 per share, and 10,000,000 shares of preferred stock which is
issuable in one or more series and of which 9,990,000 shares have a
par value of $1.00 per share and 10,000 shares have no par value
(collectively, the "Preferred Stock"). As of September 30, 1995,
158,544,204 shares of Common Stock (excluding treasury shares) were
issued and outstanding and there were no shares of Preferred Stock
issued and outstanding. In addition, as of September 30, 1995, the
Company had 8,469,250 shares of Common Stock reserved for issuance
under the Company's stock option plans, leaving 232,986,546 authorized
shares of Common Stock (including 7,978 shares of Common Stock held in
the Company's treasury) available for issuance. The number of
authorized shares of Preferred Stock includes 500,000 authorized
shares of Junior Participating Preferred Stock, Series B (the "Series
B Preferred Stock") issuable pursuant to the rights agreement dated as
of October 20, 1988 between the Company and First Chicago Trust
Company of New York (formerly known as Morgan Shareholders Services
Trust Company) (the "Rights Plan"), none of which were outstanding as
of September 30, 1995, leaving 9,500,000 authorized shares of
Preferred Stock available for issuance as of September 30, 1995. See
"-- Stock Purchase Rights."
Common Stock
The holders of the Common Stock have one vote for each share
held. Subject to the prior rights of holders of any issued and
outstanding Preferred Stock that may be issued in the future, holders
of the Common Stock are entitled to receive such dividends as may be
declared from time to time by the Board of Directors out of funds
legally available therefor. In the event of a liquidation (whether
voluntary or involuntary) or reduction in the Company's capital
resulting in any distribution of assets to stockholders, the holders
of the Common Stock are entitled to receive, pro rata according to the
number of shares held by each, all of the assets of the Company
remaining for distribution after payment to creditors and the holders
of any issued and outstanding Preferred Stock of the full preferential
amounts to which they are entitled.
Holders of the Common Stock do not have preemptive rights to
subscribe for and purchase any new or additional issue of Common Stock
or securities convertible into Common Stock. Shares of the Common
Stock are not subject to redemption.
The outstanding shares of Common Stock are listed on the New
York Stock Exchange and the Chicago Stock Exchange. The transfer
agent and registrar of the shares of Common Stock is First Chicago
Trust Company of New York.
28
Stock Purchase Rights
Each outstanding share of Common Stock includes one
preferred stock purchase right (individually a "Right" and
collectively the "Rights") provided under the Rights Plan. Each Right
entitles the holder, until the earlier of October 31, 1998 or the
redemption of the Rights, to buy one four-hundredth of a share of
Series B Preferred Stock at a price of $25 per one four-hundredth of a
share (as adjusted to reflect stock splits since the issuance of the
Rights). The Series B Preferred Stock is nonredeemable and will have
100 votes per share. The Company has reserved 500,000 shares of
Series B Preferred Stock for issuance upon exercise of such Rights.
The Rights will be exercisable only if a person or group acquires 20%
or more of voting power of the Company or announces a tender offer
following which it would hold 30% or more of the Company's voting
power.
In the event that any person becomes the beneficial owner of
30% or more of the Company's voting power, the Rights (other than
Rights held by the 30% stockholder) would become exercisable for that
number of shares of the Common Stock having a market value of two
times the exercise price of the Right. Furthermore, if, following the
acquisition by a person or group of 20% or more of the Company's
voting power, the Company were acquired in a merger or other business
combination or 50% or more of its assets were sold, or in the event of
certain types of self-dealing transactions by a 20% stockholder, each
Right (other than Rights held by the 20% stockholder) would become
exercisable for that number of shares of Common Stock (or securities
of the surviving company in a business combination) having a market
value of two times the exercise price of the Right.
The Company may redeem the Rights at one cent per Right
prior to the occurrence of an event that causes the Rights to become
exercisable for Common Stock. The Board of Directors may terminate
the Company's right to redeem the Rights under certain circumstances
at any time after a group or person acquires 20% or more of the
Company's voting power.
One Right will be issued in respect of each share of Common
Stock issued before the earlier of October 31, 1998 or the redemption
of the Rights. As of the date of this Prospectus, the Rights are not
exercisable, certificates representing the Rights have not been issued
and the Rights automatically trade with the shares of Common Stock.
The Rights will expire on October 31, 1998 unless earlier redeemed.
Preferred Stock
Under the Restated Certificate of Incorporation, shares of
Preferred Stock may be issued in the future in such series as may be
designated by the Board of Directors. In creating any such series,
the Board of Directors has the authority, without any further vote or
action by the Company's stockholders, to fix the dividend rights and
29
rates, voting and conversion rights, redemption provisions,
liquidation preferences and other relative, participating, optional or
other special rights, qualifications, limitations or restrictions of
such series.
The specific terms of a particular series of Preferred Stock
offered hereby will be described in the Prospectus Supplement relating
to such series of Preferred Stock, which may include the following:
(i) The maximum number of shares to constitute the series
and the distinctive designations thereof;
(ii) The annual dividend rate, if any, on shares of the
series, whether such rate is fixed or variable or both, the date
or dates from which dividends will begin to accrue or accumulate,
whether the dividends will be cumulative, and the dividend
preference, if any, applicable to the shares of the series;
(iii) Whether the shares of the series will be
redeemable and, if so, the price at and the terms and conditions
on which the shares of the series may be redeemed, including the
time during which the shares of the series may be redeemed and
any accumulated dividends thereon that the holders of the shares
of the series shall be entitled to receive upon redemption
thereof;
(iv) The liquidation preference, if any, applicable to
shares of the series;
(v) Whether the shares of the series will be subject to
operation of a retirement or sinking fund and, if so, the extent
and manner in which any such fund shall be applied to the
purchase or redemption of the shares of the series for retirement
or for other corporate purposes, and the terms and provisions
relating to the operation of such fund;
(vi) The terms and conditions, if any, on which the shares
of the series shall be convertible into, or exchangeable for,
shares of any other class or classes of capital stock of the
Company, or any series of any other class or classes, or of any
other series of the same class, including the price or prices or
the rate or rates of conversion or exchange and the method, if
any, of adjusting the same;
(vii) The voting rights, if any, of the shares of the
series; and
(viii) Any other preferences and relative, participating,
optional or other special rights or qualifications, limitations
or restrictions thereof.
30
Although the Company is not required to seek stockholder
approval prior to designating any future series of Preferred Stock,
the Board of Directors has a policy of seeking stockholder approval
prior to designating any future series of Preferred Stock with a vote
or convertible into stock having a vote in excess of 13% of the vote
represented by all voting stock immediately subsequent to such
issuance, except for the purpose of (i) raising capital in the
ordinary course of business or (ii) making acquisitions, the primary
purpose of which is not to effect a change of voting power.
The only series of Preferred Stock currently authorized by
the Board of Directors for issuance is the Series B Preferred Stock
issuable under the Rights Plan. See "-- Stock Purchase Rights."
Provisions With Possible Anti-Takeover Effects
As discussed above, the Company has adopted a Rights Plan
which has the effect of providing stockholders with rights to purchase
shares of Common Stock (or securities of an acquiring company) at half
of the market price under certain circumstances involving a potential
change in control of the Company that has not been approved by the
Board of Directors. In addition, the Delaware General Corporate Law
provides, among other things, that any beneficial owner of more than
15% of the Company's voting stock is prohibited, without the prior
approval of the Board of Directors, from entering into any business
combination with a company for three years from the date such 15%
ownership interest is acquired. Additionally, the "fair price
provisions" of the Restated Certificate of Incorporation require that
certain proposed business combinations between the Company and an
"interested party" (a beneficial owner of 5% or more of the voting
shares of the Company) must be approved by the holders of 75% of the
voting shares, unless certain fair price and procedural requirements
are met or the business combination is approved by the directors of
the Company who are not affiliated with the interested party. A vote
of the holders of 75% of the Company's outstanding voting stock is
required to amend the fair price provisions of the Restated
Certificate of Incorporation.
The Restated Certificate of Incorporation and the Company's
by-laws (the "By-Laws") contain certain other provisions which may be
viewed as having an anti-takeover effect. The Restated Certificate of
Incorporation classifies the Board of Directors into three classes and
provides that vacancies on the Board of Directors are to be filled by
a majority vote of directors and that directors so chosen shall hold
office until the end of the full term of the class in which the
vacancy occurred. A vote of the holders of 75% of the Company's
outstanding voting stock is required to amend these provisions. Under
the Delaware General Corporation Law, directors of the Company may
only be removed for cause. The Restated Certificate of Incorporation
and the By-Laws also contain provisions that may reduce surprise and
disruptive tactics at stockholders' meetings. The Restated
Certificate of Incorporation provides that no action may be taken by
31
stockholders except at an annual meeting or special meeting, and does
not permit stockholders to directly call a special meeting of
stockholders. A stockholder must give written notice to the Company
of an intention to nominate a director for election at an annual
meeting 90 days prior to the anniversary date of the immediately
preceding annual meeting. Each of these provisions tends to make a
change of control of the Board of Directors more difficult and time
consuming.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of the following
ways: (i) through underwriters or dealers; (ii) directly to a limited
number of purchasers or to a single purchaser; (iii) through agents;
or (iv) through any combination of the above. The Prospectus
Supplement with respect to the Securities will set forth the terms of
the offering, the purchase price of the Securities and the proceeds to
the Company from such sale, any underwriters, dealers or agents, any
delayed delivery arrangements, any fees, underwriting discounts and
other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If underwriters are involved in the sale, the Securities
will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. The Securities may be
offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or
more firms acting as underwriters. The underwriter or underwriters
with respect to a particular underwritten offering of the Securities
to be named in the Prospectus Supplement relating to such offering or,
if an underwriting syndicate is used, the managing underwriter or
underwriters, will be set forth on the cover of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus Supplement
relating thereto, the obligations of the underwriters to purchase the
Securities will be subject to conditions precedent and the
underwriters will be obligated to purchase all the Securities offered
by the Prospectus Supplement if any are purchased.
If dealers are utilized in the sale of the Securities in
respect of which this Prospectus is delivered, the Company will sell
such Securities to the dealers as principals. The dealers may then
resell such Securities to the public at varying prices to be
determined by such dealers at the time of resale. The names of the
dealers and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
32
The Securities may be sold directly by the Company or
through agents designated by the Company from time to time. Any agent
involved in the offer or sale of the Securities in respect to which
this Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth in, the
Prospectus Supplement relating thereto.
The Securities may be sold directly by the Company to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect to
any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
Agents, dealers and underwriters may be entitled under
agreements entered into with the Company to indemnification by the
Company against certain civil liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which
such agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may be customers
of, engage in transactions with, or perform services for the Company
in the ordinary course of business.
Other than the Common Stock, which will be approved for
listing upon notice of issuance on the New York Stock Exchange and the
Chicago Stock Exchange, the Securities may or may not be listed on a
national securities exchange. No assurances can be given that there
will be a market for the Securities.
LEGAL OPINION
The validity of the Securities offered hereby will be passed
upon for the Company by Schiff Hardin & Waite, Chicago, Illinois, and
for any underwriters or agents as specified in the Prospectus
Supplement. The opinions with respect to the Securities may be
conditioned upon, and subject to certain assumptions regarding, future
action to be taken by the Company and the applicable Trustee in
connection with the issuance and sale of particular Securities, the
specific terms of the Securities and other matters that may affect the
validity of the Securities but that cannot be ascertained on the date
of such opinions. Schiff Hardin & Waite has advised the Company that,
as of the date hereof, a member of the firm participating in the
representation of the Company in this offering owns approximately
3,700 shares of Common Stock.
33
EXPERTS
The consolidated financial statements and schedule of the
Company incorporated herein by reference, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated herein by reference
in reliance upon the authority of said firm as experts in accounting
and auditing in giving said reports.
34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth all expenses in connection
with the distribution of the Debt Securities, Preferred Stock, Common
Stock and Rights being registered. All amounts shown below are
estimates, except the registration fee:
Registration fee of Securities and Exchange Commission . . . . . . . . . . . . . $100,000
Accountants' fees and expenses . . . . . . . . . . . . . . . . . . . . . . 50,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . 200,000
Printing Registration Statement, prospectus and exhibits
and other printing expenses . . . . . . . . . . . . . . . . . . . . . . 100,000
Trustee fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . 20,000
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125,000
Blue sky fees, expenses and legal fees . . . . . . . . . . . . . . . . . . 15,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000
--------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $635,000
Item 15. Indemnification of Directors and Officers
The Restated Certificate of Incorporation and By-Laws of the
registrant provide for indemnification by the registrant of each of
its directors and officers to the fullest extent permitted by law for
liability (including liability arising under the Securities Act) of
such director or officer arising by reason of his or her status as a
director or officer of the registrant, provided that he or she met the
standards established in the Restated Certificate of Incorporation,
which include requirements that he or she acted in good faith and in a
manner he or she reasonably believed to be in the registrant's best
interests. The registrant will also advance expenses prior to final
disposition of an action, suit or proceeding upon receipt of an
undertaking by the director or officer to repay such amount if the
director or officer is not entitled to indemnification. All rights to
indemnification and advancement of expenses are deemed to be a
contract between the registrant and its directors and officers. The
determination that a director or officer has met the standards
established in the Restated Certificate of Incorporation and By-Laws
may be made by majority vote of a quorum consisting of disinterested
directors, an opinion of counsel (regardless of whether such quorum is
available), a majority vote of stockholders, or a court (which may
also overturn any of the preceding determinations). The registrant
has purchased insurance against liabilities of directors or officers,
as permitted by the Restated Certificate of Incorporation and By-Laws.
The registrant also has entered into indemnification agreements with
each of its directors and officers which provide that the directors
II-1
and officers will be entitled to their indemnification rights as they
existed at the time they entered into the agreement, regardless of
subsequent changes in the registrant's indemnification policy.
Item 16. Exhibits
The Exhibits filed herewith are set forth on the Index to
Exhibits filed as a part of this Registration Statement on page II-6
hereof.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
II-2
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under
Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Rockford, State
of Illinois, on this 14th day of November, 1995.
NEWELL CO.
(Registrant)
By: /s/ William T. Alldredge
-----------------------------------
William T. Alldredge
Vice President - Finance
Each person whose signature appears below appoints William
P. Sovey and William T. Alldredge, or either of them, as such
person's true and lawful attorneys to execute in the name of each such
person, and to file, any amendments to this Registration Statement
that either of such attorneys shall deem necessary or advisable to
enable the registrant to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities
and Exchange Commission with respect thereto, in connection with the
registration of the Securities of the registrant that are subject to
this Registration Statement, which amendments may make such changes in
such Registration Statement as either of the above-named attorneys
deems appropriate, and to comply with the undertakings of the
registrant made in connection with this Registration Statement; and
each of the undersigned hereby ratifies all that either of said
attorneys shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ William P. Sovey Vice Chairman and Chief Executive November 14, 1995
----------------------------------- Officer (Principal Executive
William P. Sovey officer) and Director
/s/ William T. Alldredge Vice President - Finance November 14, 1995
----------------------------------- (Principal Financial Officer)
William T. Alldredge
/s/ Thomas A. Ferguson, Jr. President and Chief November 14, 1995
----------------------------------- Operating Officer and Director
Thomas A. Ferguson, Jr.
II-4
/s/ Donald L. Krause Senior Vice President - Controller November 14, 1995
----------------------------------- (Principal Accounting Officer)
Donald L. Krause
/s/ Daniel C. Ferguson Chairman of the Board of Directors November 14, 1995
-----------------------------------
Daniel C. Ferguson
/s/ Alton F. Doody Director November 14, 1995
-----------------------------------
Alton F. Doody
/s/ Gary H. Driggs Director November 14, 1995
-----------------------------------
Gary H. Driggs
/s/ Robert L. Katz Director November 14, 1995
-----------------------------------
Robert L. Katz
/s/ John J. McDonough Director November 14, 1995
-----------------------------------
John J. McDonough
/s/ Elizabeth Cuthbert Millett Director November 14, 1995
-----------------------------------
Elizabeth Cuthbert Millett
/s/ Allan P. Newell Director November 14, 1995
-----------------------------------
Allan P. Newell
/s/ Henry P. Pearsall Director November 14, 1995
-----------------------------------
Henry P. Pearsall
II-5
EXHIBIT INDEX
Exhibit
Number Description
- ------- ------------------------------------------------------------
1 Form of Underwriting Agreement.<*>
4.1 Restated Certificate of Incorporation of Newell Co., as
amended as of May 10, 1995 (incorporated by reference to
Exhibit 3.1 to the Company's Form 10-Q for the quarter ended
June 30, 1995).
4.2 By-Laws of Newell Co., as amended through February 6, 1995
(incorporated by reference to Exhibit 3.2 to the Company's
Form 10-Q for the quarter ended June 30, 1995).
4.3 Form of Indenture, dated as of November 1, 1995, to be
entered into between the Company and The Chase Manhattan
Bank (National Association), as Trustee, relating to the
Senior Debt Securities.
4.4 Form of Indenture, dated as of November 1, 1995, to be
entered into between the Company and The Chase Manhattan
Bank (National Association), as Trustee, relating to the
Subordinated Debt Securities.
4.5 Rights Agreement dated as of October 20, 1988 between the
Company and First Chicago Trust Company of New York
(formerly known as Morgan Shareholders Services Trust
Company) (incorporated by reference to Exhibit 4 to the
Company's Current Report on Form 8-K dated October 25, 1988).
5 Opinion of Schiff Hardin & Waite.<*>
12 Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred
Dividends.<*>
23.1 Consent of Schiff Hardin & Waite (contained in their opinion
filed as Exhibit 5).<*>
23.2 Consent of Arthur Andersen LLP.
24 Powers of attorney (set forth on the signature page of this
Registration Statement).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Trustee for Senior Indenture.<*>
25.2 Form of T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of Trustee for Subordinated
Indenture.<*>
__________________
<*> To be filed by Amendment.
II-6
______________________________________________________________________
______________________________________________________________________
NEWELL CO.,
as Issuer
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Trustee
--------------------------------
INDENTURE
Dated as of November 1, 1995
_______________________________________________
Providing for issuance of Unsubordinated Debt Securities in Series
______________________________________________________________________
______________________________________________________________________
Cross-Reference Table*
Section of Trust Indenture
Act of 1939, as amended Section of Indenture
SECTION 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 608
SECTION 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 612
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 612
SECTION 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 701
SECTION 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
SECTION 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 602
SECTION 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . 104(e); 1505(a)
SECTION 317(a)(1)503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
SECTION 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 107
_________________
*Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS*
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease Obligations . . . . . . . . . . . 3
CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . . . . 3
Consolidated Total Assets . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . 4
Covenant Defeasance . . . . . . . . . . . . . . . . 4
Currency . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . 4
Defeasance . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . 5
Euroclear . . . . . . . . . . . . . . . . . . . . . 5
European Communities . . . . . . . . . . . . . . . . 5
European Monetary System . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . 5
____________________
*Note: This table of contents shall not, for any purpose, be deemed
to be a part of this Indenture.
-i-
Exchange Date . . . . . . . . . . . . . . . . . . . 5
Exchange Rate Agent . . . . . . . . . . . . . . . . 5
Exchange Rate Officer's Certificate . . . . . . . . 5
Federal Bankruptcy Code . . . . . . . . . . . . . . 5
Foreign Currency . . . . . . . . . . . . . . . . . . 5
Funded Debt . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security . . . . . . . . . . . . . . . . . . 7
Interest . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . 7
Lien . . . . . . . . . . . . . . . . . . . . . . . . 7
Market Exchange Rate . . . . . . . . . . . . . . . . 7
Maturity . . . . . . . . . . . . . . . . . . . . . . 8
Notice of Default . . . . . . . . . . . . . . . . . 8
Officers' Certificate . . . . . . . . . . . . . . . 8
Opinion of Counsel . . . . . . . . . . . . . . . . . 8
Optional Reset Date . . . . . . . . . . . . . . . . 8
Original Issue Discount Security . . . . . . . . . . 8
Outstanding . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . 10
Permitted Liens . . . . . . . . . . . . . . . . . . 10
Person . . . . . . . . . . . . . . . . . . . . . . . 10
Place of Payment . . . . . . . . . . . . . . . . . . 10
Predecessor Security . . . . . . . . . . . . . . . . 10
Principal Subsidiary . . . . . . . . . . . . . . . . 10
Redemption Date . . . . . . . . . . . . . . . . . . 11
Redemption Price . . . . . . . . . . . . . . . . . . 11
Registered Security . . . . . . . . . . . . . . . . 11
Regular Record Date . . . . . . . . . . . . . . . . 11
Repayment Date . . . . . . . . . . . . . . . . . . . 11
Repayment Price . . . . . . . . . . . . . . . . . . 11
Reset Notice . . . . . . . . . . . . . . . . . . . . 11
Responsible Officer . . . . . . . . . . . . . . . . 11
Sale and Lease-back Transaction . . . . . . . . . . 11
Securities . . . . . . . . . . . . . . . . . . . . . 12
Security Register; Securities Registrar . . . . . . 12
Special Record Date . . . . . . . . . . . . . . . . 12
Stated Maturity . . . . . . . . . . . . . . . . . . 12
Subsequent Interest Period . . . . . . . . . . . . . 12
Subsidiary . . . . . . . . . . . . . . . . . . . . . 12
Trust Indenture Act; TIA . . . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . 12
United States . . . . . . . . . . . . . . . . . . . 13
United States Person . . . . . . . . . . . . . . . . 13
Value . . . . . . . . . . . . . . . . . . . . . . . 13
Vice President . . . . . . . . . . . . . . . . . . . 13
Voting Stock . . . . . . . . . . . . . . . . . . . . 13
Yield to Maturity . . . . . . . . . . . . . . . . . 13
-ii-
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Page
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 14
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 14
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . 14
SECTION 105. Notices, etc. to Trustee and Company . . . . . . . . 17
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . 18
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . 19
SECTION 108. Effect of Headings and Table of Contents . . . . . . 19
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 19
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . 19
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . 19
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . 20
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 20
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 20
SECTION 202. Form of Trustee's Certificate of Authentication . . 20
SECTION 203. Securities Issuable in Global Form . . . . . . . . . 21
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 22
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 26
-iii-
SECTION 303. Execution, Authentication, Delivery and Dating . . . 27
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 30
SECTION 305. Registration of Transfer and Exchange . . . . . . . 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 36
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset . . . . . . . . . . . . . . 38
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . 41
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . 42
SECTION 310. Computation of Interest . . . . . . . . . . . . . . 42
SECTION 311. Securities in Foreign Currencies . . . . . . . . . . 42
SECTION 312. Appointment and Resignation of Successor Exchange Rate
Agent . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . 44
SECTION 402. Application of Trust Money . . . . . . . . . . . . . 44
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . 46
SECTION 502. Acceleration of Maturity; Rescission and Annulment . 48
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 49
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . 50
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 51
SECTION 506. Application of Money Collected . . . . . . . . . . . 51
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . 52
-iv-
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 52
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . 53
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . 53
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . 53
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . 53
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . 54
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . 54
ARTICLE SIX
The Trustee
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . 55
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . 55
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 57
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . 57
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . 57
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . 57
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . 58
SECTION 608. Resignation and Removal; Appointment of Successor . 58
SECTION 609. Acceptance of Appointment by Successor . . . . . . . 60
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . 61
SECTION 611. Appointment of Authenticating Agent . . . . . . . . 62
SECTION 612. Preferential Collection of Claims Against Company . 64
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Disclosure of Names and Addresses of Holders . . . . 64
-v-
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . 64
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . 65
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 802. Successor Person Substituted . . . . . . . . . . . . 66
SECTION 803. Assignment of Rights . . . . . . . . . . . . . . . . 67
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . 67
SECTION 902. Supplemental Indentures with Consent of Holders . . 69
SECTION 903. Execution of Supplemental Indentures . . . . . . . . 70
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . 70
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . 70
SECTION 906. Reference in Securities to Supplemental Indentures . 70
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . 70
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium, if any, and Interest 71
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . 71
SECTION 1003. Money for Securities Payments to Be Held in Trust . 73
SECTION 1004. Statement as to Compliance . . . . . . . . . . . . . 74
SECTION 1005. Additional Amounts . . . . . . . . . . . . . . . . . 74
SECTION 1006. Corporate Existence . . . . . . . . . . . . . . . . 76
-vi-
SECTION 1007. Limitations on Liens . . . . . . . . . . . . . . . . 76
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . 79
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . 79
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . 80
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . 80
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . 80
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . 82
SECTION 1106. Securities Payable on Redemption Date . . . . . . . 82
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . 83
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . 84
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . 84
ARTICLE THIRTEEN
Repayment at Option of Holders
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . 86
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . 86
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . 86
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable . . . . . . . . . . . . . . . . . . . . 87
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . 88
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ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . 89
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . 89
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . 90
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . 92
SECTION 1406. Reinstatement. . . . . . . . . . . . . . . . . . . . 93
ARTICLE FIFTEEN
Meetings of Holders of Securities
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . 93
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . 94
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . 94
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . 95
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . 95
SECTION 1506. Counting Votes and Recording Action of Meetings . . 97
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
-viii-
INDENTURE, dated as of November 1, 1995, between Newell Co., a
corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), having executive offices located at 29 East
Stephenson Street, Freeport, Illinois 61032-0943, and The Chase
Manhattan Bank (National Association), a national banking association
duly organized and existing under the laws of the United States, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture
provided. This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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, and the terms "cash transaction"
and "self-liquidating paper," as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States 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 such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A" or "B" means "A or B or both" and not "either A or B but not
both").
Certain terms are defined in certain other Articles hereof
(principally Article Three).
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"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" of any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community
of each such place. Where successive publications are required to be
made in Authorized Newspapers, such publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
-2-
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions
in that Place of Payment or other location are authorized or obligated
by law or executive order to close.
"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease
of (or other agreement conveying the right to use) real or personal
property which obligations are required to be classified and accounted
for as capital lease obligations on a balance sheet of such Person
under generally accepted accounting principles and, for purposes of
this Indenture, the amount of such obligations at any date shall be
the capitalized amount thereof at such date, determined in accordance
with generally accepted accounting principles.
"CEDEL S.A." means Cedel Bank, societe anonyme or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its Vice Chairman,
its President, any Vice President, its Treasurer or an Assistant
Treasurer, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or
within the international banking community for the settlement of
transactions, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit (or
-3-
composite currency) other than the ECU for the purposes for which it
was established.
"Consolidated Total Assets" means the total of all the assets
appearing on the consolidated balance sheet of the Company and its
Subsidiaries determined in accordance with generally accepted
accounting principles applicable to the type of business in which the
Company and such Subsidiaries are engaged, and may be determined as of
a date not more than sixty days prior to the happening of the event
for which such determination is being made.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust
business shall be administered, which office on the date of execution
of this Indenture is located at 4 Chase MetroTech Center, Brooklyn,
New York 11245, Attention: Institutional Trust Group, except that with
respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of
the Trustee at which, at any particular time, its corporate agency
business shall be conducted which office or agency on the date of
execution of this Indenture is located at One Chase Manhattan Plaza,
Level 1B, New York, New York 10081, Attention: Institutional Trust
Group Window.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"covenant defeasance" has the meaning specified in Section 1403.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any
recognized confederation or association of such governments as legal
tender for the payment of public and private debts.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1402.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as
Depository by the Company in or pursuant to this Indenture, which
Person must be, to the extent required by applicable law or
regulation, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and, if so provided with respect to any
Security, any successor to such Person. If at any time there is more
than one such Person, "Depository" shall mean, with respect to any
-4-
Securities, the qualifying entity which has been appointed with
respect to such Securities
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated
pursuant to Section 301 or Section 312.
"Exchange Rate Officer's Certificate" means a tested telex, facsimile
(with copy to follow by U.S. Mail) or a certificate setting forth (i)
the applicable Market Exchange Rate and (ii) the Dollar or Foreign
Currency amounts of principal (and premium, if any) and interest, if
any (on an aggregate basis and on the basis of a Security having the
lowest denomination principal amount determined in accordance with
Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate, sent
(in the case of a telex) or signed (in the case of a facsimile or
certificate) by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Funded Debt" means any indebtedness which by its terms matures at or
is extendable or renewable at the sole option of the obligor without
-5-
requiring the consent of the obligee to a date more than 12 months
after the date of the creation of such indebtedness.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301,
securities which are (i) direct obligations of the government or
governments 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 or governments which issued the Currency in which
the Securities of such series are payable, the payment of which is
unconditionally guaranteed by such government or governments, which,
in either case, are full faith and credit obligations of such
government or governments payable in such Currency and are not
callable or redeemable at the option of the issuer or issuers thereof
and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with
respect to any such Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with
respect to any Coupon, shall mean the bearer thereof.
"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 301; provided, however, that,
if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more
series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
-6-
become such Trustee but to which such Person, as such Trustee, was not
a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity and/or
interest to be paid thereon may be determined by reference to the
exchange rate of one or more specified Currencies relative to an index
or one or more equity or other indices and/or formulae or the price of
one or more specified commodities or by such other methods or formulae
as may be determined in accordance with this Indenture.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such
Original Issue Discount Security.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means, as to any Person, any mortgage, lien, collateral
assignment, pledge, charge, security interest or other encumbrance in
respect of or on, or any interest or title of any vendor, lessor,
lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capitalized
Lease Obligation, purchase money mortgage or Sale and Lease-back
Transaction with respect to, any property or asset (including without
limitation income and rights thereto) of such Person (including
without limitation capital stock of any Subsidiary of such Person) or
the signing by such Person and filing of a financing statement which
names such Person as debtor or the signing of any security agreement
agreeing to file, or authorizing any other party as the secured party
thereunder to file, any financing statement.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign
Currency on the other, the exchange rate between the relevant currency
unit and Dollars or such Foreign Currency calculated by the method
specified pursuant to Section 301 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency,
the noon (New York City time) buying rate for such Foreign Currency
for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be
purchased with the Foreign Currency from which conversion is being
made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency,
-7-
in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in
the event of the unavailability of any of the exchange rates provided
for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks
in New York City, London or another principal market for the Currency
in question, or such other quotations as the Exchange Rate Agent shall
deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be
used in respect of such Currency shall be that upon which a
non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such
securities.
"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 provided in or pursuant to this Indenture,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment or
otherwise.
"Notice of Default" has the meaning specified in Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman,
the Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Optional Reset Date" has the meaning specified in Section 307(b).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and
payable upon acceleration of the Maturity thereof pursuant to Section
502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment money in the necessary amount has been theretofore
-8-
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any Coupons appertaining thereto; 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;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided herein; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by
TIA Section 313, (a) the principal amount of an Original Issue
Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would
be (or shall have been declared to be) due and payable, at the time of
such determination, upon acceleration of the maturity thereof pursuant
to Section 502, (b) the principal amount of any Indexed Security that
may be counted in making such determination and that shall be deemed
outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Security pursuant to Section 301, and
(c) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such
determination or calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
-9-
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or
premium, if any, on) or interest on any Securities on behalf of the
Company.
"Permitted Liens" means mechanics, materialmen, landlords,
warehousemen and carriers liens and other similar liens imposed by law
securing obligations incurred in the ordinary course of business which
are not past due or which are being contested in good faith by
appropriate proceedings and for which appropriate reserves have been
established; Liens under workmen's compensation, unemployment
insurance, social security or similar legislation; liens, deposits, or
pledges to secure the performance of bids, tenders, contracts (other
than contracts for the payment of money), leases, public or statutory
obligations, surety, stay, appeal, indemnity, performance or other
similar bonds, or other similar obligations arising in the ordinary
course of business; judgment and other similar liens arising in
connection with court proceedings, provided the execution or other
enforcement of such liens is effectively stayed and the claims secured
thereby are being actively contested in good faith and by appropriate
proceedings; and easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not materially
interfere with the occupation, use and enjoyment by the Company or any
Subsidiary of the property or assets encumbered thereby in the normal
course of its business or materially impair the value of the property
subject thereto.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and
premium, if any, on) and interest on such Securities are payable as
specified pursuant to Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen
Coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to which
the mutilated, destroyed, lost or stolen Coupon appertains, as the
case may be.
"Principal Subsidiary" means, as of any date of determination thereof,
any Subsidiary the consolidated net revenues of which for the twelve-
-10-
month period ending on the last day of the month then most recently
ended exceed 10% of consolidated net revenues of the Company for such
period, determined on a pro forma basis after giving effect to any
acquisition or disposition of a Subsidiary or a business effected on
or prior to the determination date and after the beginning of such
twelve-month period (including acquisitions and dispositions
accomplished through a purchase or sale of assets or through a merger
or consolidation).
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be
repaid pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 307(b).
"Responsible Officer," when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer,
any trust officer or any assistant trust officer within the Corporate
Trust Office or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
"Sale and Lease-back Transaction" means, with respect to any Person,
any direct or indirect arrangement with any other Person or to which
any other Person is a party, providing for the leasing to such Person
of any property, whether now owned or hereafter acquired (except for
temporary leases for a term, including any renewal thereof, of not
more than three years and except for leases between the Company and a
-11-
Subsidiary or between Subsidiaries), which has been or is to be sold
or transferred by such first Person to such other Person or to any
Person to whom funds have been or are to be advanced by such other
Person on the security of such property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities
of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a Coupon representing such installment
of interest as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsequent Interest Period" has the meaning specified in Section
307(b).
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or
more Subsidiaries, owns or controls directly or indirectly more than
50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed;
provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" or "TIA" shall mean,
to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of
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any series shall mean only the Trustee with respect to Securities of
that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership
or other entity created or organized in or under the laws of the
United States or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
"Value" shall mean, with respect to a Sale and Lease-back Transaction,
as of any particular time, the amount equal to the greater of (1) the
net proceeds from the sale or transfer of the property leased pursuant
to such Sale and Lease-back Transaction or (2) the fair value in the
opinion of the Board of Directors, the Chairman of the Board, the Vice
Chairman of the Board, the President or the principal financial
officer of the Company of such property at the time of entering into
such Sale and Lease-back Transaction, in either case multiplied by a
fraction, the numerator of which shall be equal to the number of full
years of the term of the lease remaining at the time of determination
and the denominator of which shall be equal to the number of full
years of such term, without regard to any renewal or extension options
contained in the lease.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation
(irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond
yield computation principles.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture
(including any covenant 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 or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include: (1) a
statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement
that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether, in the
opinion of each such individual, such covenant or condition has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the certificate 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 or
representation by counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations
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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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by or pursuant to this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied
in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section
315 of the TIA) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other
action provided in or pursuant to this Indenture to be made, given or
taken by Holders, and a U.S. Depository that is a Holder of a global
Security may provide its proxy or proxies to the beneficial owners of
interests in any such global Security through such U.S. Depository's
standing instructions and customary practices.
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The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global
Security held by a U.S. Depository entitled under the procedures of
such U.S. Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other action, whether or not such Holders
remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be valid or effective if made, given or taken more than 90 days
after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved 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 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, principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may
be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later
date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of
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Bearer Securities held by any Person, and the date of holding the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in
or pursuant to such Board Resolution, which shall be a date not
earlier than the date thirty (30) days prior to the first solicitation
of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, (1)
the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
by hand, telecopier (with confirmation of receipt) or certified or
registered mail (confirmation of receipt requested) to or with the
Trustee at its Corporate Trust Office, telecopier number (718) 242-
5886 or at any other address (or telecopier number) as may be
furnished in writing to the Company and the Holders by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient
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for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing by hand,
telecopier (with confirmation of receipt) or certified or registered
mail (confirmation of receipt requested) to or with the Company
addressed to it at the address of its executive office specified in
the first paragraph of this Indenture, telecopier number (815) 233-
8060, or at any other address (or telecopier number) as may be
previously furnished in writing to the Trustee and the Holders by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise expressly provided in or
pursuant to this Indenture) if in writing and mailed, first-class
postage prepaid, to each such 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 of
Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. In case, by reason of
the suspension of or irregularities in regular mail service or by
reason of any other cause, it shall be impractical to mail notice of
any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be sufficient giving of such notice for
every purpose hereunder. Except as otherwise expressly provided
herein or otherwise specified with respect to any Securities pursuant
to Section 301, where this Indenture provides for notice to Holders of
Bearer Securities of any event, such notice shall be sufficiently
given to Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities and, if such Securities are then
listed on any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the
giving of such notice. Any such notice shall be deemed to have been
given on the date of the first such publication. In case by reason of
the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be
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impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities
as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein. Any request, demand,
authorization, direction, notice, consent or waiver required or
permitted under this Indenture shall be in the English language,
except that, if the Company so elects, any published notice may be in
an official language of the country of publication. 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be a 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 that 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 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in any Security or Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or Coupons, express or
implied, shall give to any Person, other than the parties hereto, any
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Authenticating Agent, any Paying Agent, any Securities Registrar and
their successors hereunder and the Holders of Securities or Coupons,
any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF
1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND
SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
SECTION 113. Legal Holidays.
Unless otherwise provided as contemplated by Section 301, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity or
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 any Security or Coupon other than a provision in the Securities
of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Stated Maturity
or Maturity, as the case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related Coupons shall be in the
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 or pursuant to this Indenture or any
indenture supplemental hereto, 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 any law or the rules of any
securities exchange or as may, consistently herewith, be determined by
the officers executing such Securities or Coupons, as evidenced by
their execution of the Securities or Coupons. If the forms of
Securities or Coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
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such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or Coupons. Any
portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the
Security. Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have Coupons attached. The Trustee's
certificate of authentication on all Securities shall be in
substantially the form set forth in this Article. The definitive
Securities or Coupons shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities or
Coupons, as evidenced by their execution of such Securities or
Coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank (National Association),
as Trustee
By:_____________________________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then any such Security shall
represent such of the Outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to
time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section
303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable
Company Order. If a Company Order pursuant to Section 303 or Section
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304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel. The
provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303. Unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in permanent
global form shall be made to the Depository therefor, and the Company,
the Trustee and any agent of the Company and the Trustee shall treat,
for all purposes whatsoever, such Depository as the Holder of such
Security.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series and each series will
rank at least equally and pari passu with all senior unsecured and
unsubordinated debt of the Company. There shall be established in one
or more Board Resolutions or pursuant to authority granted by one or
more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series, any or all of the following,
as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (17) below), if so provided, may be determined
from time to time by the Company with respect to unissued Securities
of the series and set forth in such Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
series of 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
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the series pursuant to Section 304, 305, 306, 906, 1107 or
1305 or the terms of such Securities);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, and
the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
The City of New York, where the principal of (and premium,
if any, on) and any interest on Securities of the series
shall be payable, any Registered Securities of the series
may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and, if
different than the location specified in Section 106, the
place or places where notices or demands to or upon the
Company in respect of the Securities of the series and this
Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions
upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the
Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price
or prices at which, the Currency in which, and other terms
and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation and any provision for the remarketing of
any Securities that are so redeemed, repaid or purchased;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which
any Registered Securities of the series shall be issuable
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and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) 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 502 or the method by which such
portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (and premium, if any, on) or interest, if any,
on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated and the
particular provisions applicable thereto;
(12) whether the amount of payments of principal of (and premium,
if any, on) or interest on the Securities of the series may
be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof,
in a Currency other than that in which such Securities are
denominated or stated to 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 in which such
Securities are denominated or stated to be payable and the
Currency in which such Securities are to be so payable;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) any provisions in modification of, in addition to or in lieu
of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such
events as may be specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect
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to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(18) whether any Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
Coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities, whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or
without Coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange
such interests for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for
Bearer Securities of the series (if permitted by applicable
laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of the
series, and the circumstances under which and the place or
places where such exchanges may be made and if Securities of
the series are to be issuable in global form, the identity
of any initial depositary therefor; provided, that, unless
otherwise provided pursuant to this Section 301 the
Securities shall be issued as Registered Securities;
(19) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the
date of original issuance of the first Security of the
series to be issued;
(20) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest, the manner in which,
or the Person to whom, any interest on any Bearer Security
of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons appertaining
thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of
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certain certificates or other documents or satisfaction of
other conditions, the form and/or terms of such
certificates, documents or conditions;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder (including any
modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the
terms of any such option);
(23) if the Securities of the series are to be convertible into
or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable; and
(24) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the
series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of
this Indenture).
All Securities of any one series and the Coupons appertaining to any
Bearer Securities of such series shall be substantially identical
except as to denomination, Currency of payments due thereunder, the
rate or rates of interest (if any) payable thereon and Stated Maturity
and except as may otherwise be provided in or pursuant to such Board
Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. Not all
Securities of any one series need be issued at the same time, and,
unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series. If any of the terms of the
Securities or Coupons of any series are established by action that is
specified in or authorized by one or more Board Resolutions and such
action is to be taken at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series of Securities or
the manner in which such terms are to be determined or established,
then a copy of an appropriate record of such action(s) shall be
certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series of
Securities or the manner in which such terms are to be determined or
established.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
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Securities of any series denominated in Dollars, in the absence of any
such provisions, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any
integral multiple thereof and the Bearer Securities of such series,
other than the Bearer Securities issued in global form (which may be
of any denomination), shall be issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any Coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman, its Vice Chairman, its
President or any Vice President or the Treasurer of the Company, under
its corporate seal reproduced thereon attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the
Securities or Coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities or Coupons.
Securities or Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
together with any Coupon appertaining thereto, executed by the Company
to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided, further, that, unless
otherwise specified with respect to any series of Securities pursuant
to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form
established pursuant to Section 301 for such purpose, dated no earlier
than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary Security
first becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security,
then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original
issuance of such beneficial owner's interest in such permanent global
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Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant
Coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time
and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth
procedures for the issuance of such Securities and determining terms
of particular Securities of such series such as interest rate,
maturity date, date of issuance and date from which interest shall
accrue.
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 TIA Sections
315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel substantially to the effect:
(a) that the form or forms of such Securities and any Coupons
have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities and any Coupons have been
established in conformity with the provisions of this
Indenture;
(c) that such Securities, together with any Coupons appertaining
thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance
with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
and other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights, (ii)
general equitable principles , (iii) limitations imposed by
any requirement that a claim (or a Foreign Currency judgment
in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or limitations imposed by governmental
authority to limit, delay or prohibit the making of payments
in a Foreign Currency or payments outside of the United
States; and (iv) such other qualifications as such counsel
shall conclude are customary or do not materially affect the
rights of Holders of such Securities and the Coupons
appertaining thereto (if any);
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(d) that authentication and delivery of such Securities and any
Coupons and the execution and delivery of the supplemental
indenture, if any, by the Trustee will not violate the terms
of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any Coupons, and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any Coupons will
not contravene the certificate of incorporation or by-laws
of the Company or result in any violation of any of the
terms or provisions of any law, regulation, or material
indenture, mortgage or other agreement known to such Counsel
by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued
at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to the
preceding two paragraphs prior to or at the time of issuance of each
Security, but such documents shall be delivered prior to or at the
time of issuance of the first Security of such series. After any such
first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions
precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Each Registered Security shall
be dated the date of its authentication, and each Bearer Security
shall be dated as of the date specified as contemplated by Section
301.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the
form of one or more global Securities, the Company shall execute and
the Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one or
more global Securities in 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 such global Security or Securities, (ii) shall be registered, if in
registered form, in the name of the Depository for such global
Security or Securities or the nominee of such Depository, (iii) shall
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be delivered by the Trustee to such Depository or pursuant to such
Depository'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 certificated form, this Security may not be
transferred as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository" or to such other effect as the Depository and the Trustee
may agree.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more Coupons or without
Coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution
of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for
definitive Securities of such series, upon surrender of the temporary
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Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security, except as provided in or
pursuant to this Indenture, shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set
forth in or pursuant to this Indenture. Unless otherwise provided in
or pursuant to this Indenture with respect to a temporary global
Security, until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate principal
amount equal to the principal amount of such temporary global
Security, executed by the Company. On or after the Exchange Date such
temporary global Security shall be surrendered by the Depository to
the Trustee, as the Company's agent for such purpose, to be exchanged,
in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an equal
aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities
to be delivered in exchange for any such temporary global Security
shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Depository, such
temporary global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the
form established pursuant to Section 301; and provided, further, that
definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the
requirements of Section 303.
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Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear
or CEDEL S.A., as the case may be, a certificate in the form
established pursuant to Section 301, dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL S.A., the Trustee,
any Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person
at the offices of Euroclear or CEDEL S.A. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section 301,
interest payable on a temporary global Security on an Interest Payment
Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to the
Trustee of a certificate or certificates in the form established
pursuant to Section 301, for credit without further interest on or
after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to
Euroclear or CEDEL S.A., as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form established pursuant to
Section 301. Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs
of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of
the same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security
-32-
will be made unless and until such interest in such temporary global
Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and CEDEL S.A. and
not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any
other office or agency of the Company 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,
the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by
the Trustee. The Trustee is hereby initially appointed as security
registrar (the "Security Registrar") for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee, one or more new
Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental
hereto, delivered as contemplated by Section 301, at the option of the
Holder, Bearer Securities of any series may be exchanged for
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Registered Securities of the same series of any authorized
denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office
or agency, with all unmatured Coupons and all matured Coupons in
default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of
such missing Coupon or Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at
any such office or agency in a permitted exchange for a Registered
Security of the same series and like tenor after the close of business
at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or
Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may
be, in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any permanent global Security shall be
exchangeable for definitive Securities only if (i) the Depository is
at any time unwilling, unable or ineligible to continue in its
capacity as Depository and a successor depositary is not appointed by
the Company within 60 days of the date the Company is so informed in
writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is
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continuing with respect to the Securities of the same series. If any
beneficial owner of an interest in a permanent global Security is
entitled to exchange such interest for Securities of such series and
of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided
that any applicable notice provided in the permanent global Security
shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive
Securities in aggregate principal amount equal to the principal amount
of such beneficial owner's interest in such permanent global Security,
executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Depository or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301,
shall be in the form of Bearer Securities or Registered Securities, or
any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be
among those selected for redemption; and provided, further, that no
Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location
in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date payment, as the
case may be, only to the Person to whom interest in respect of such
portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing
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the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or
1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for
redemption of Securities of that series under Section 1103 or 1203 and
ending at the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the date of the mailing of the
relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the date of the first publication of
the relevant notice of redemption or, if Securities of the series are
also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security
may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of
or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security
not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any,
appertaining to the surrendered Security, or, in case any such
mutilated Security or Coupon has become or is about to become due and
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payable, the Company in its discretion may, instead of issuing a new
Security, with Coupons corresponding to the Coupons, if any,
appertaining to the surrendered Security, pay such Security or Coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security or Coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee
that such Security or Coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen Coupon appertains (with all appurtenant
Coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen
Coupon appertains, or, in case any such destroyed, lost or stolen
Security or Coupon has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Security,
with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen Coupon appertains, pay such Security or
Coupon.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series with its Coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or
stolen Coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its Coupons, if any, or the destroyed,
lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and
their Coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.
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SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Company's option be paid by mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 310, to the address of such Person as it appears
on the Security Register; provided, further, however, that a Holder of
$10,000,000 or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled
to receive interest payments on such Interest Payment Date by wire
transfer of immediately available funds to an account in the United
States if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date, and any such wire transfer instructions
received by the Trustee shall remain in effect until revoked by such
Holder.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer
Security is surrendered in exchange for a Registered Security after
the close of business at an office or agency for such Security on any
Regular Record Date therefor and before the opening of business at
such office or agency on the next succeeding Interest Payment Date
therefor, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date and interest shall not be
payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such defaulted interest and, if applicable, interest
on such defaulted interest (to the extent lawful) at the rate
specified in the Securities of such series (such defaulted interest
and, if applicable, interest thereon herein collectively called
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"Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with
the Trustee an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series ) 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 on
or prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided in
Section 106, 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 given, such Defaulted Interest shall be paid
to the Persons in whose name the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency for such
Security in exchange for a Registered Security of such
series after the close of business at such office or agency
on any Special Record Date and before the opening of
business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the Coupon relating to such
proposed date of payment and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the
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Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant
to such Section 301). The interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) on any
Security of such series may be reset by the Company on the date or
dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such
Security by notifying the Trustee of such exercise at least 55 but not
more than 60 days prior to an Optional Reset Date for such Note. Not
later than 40 days prior to each Optional Reset Date, the Trustee
shall transmit, in the manner provided for in Section 106, to the
Holder of any such Security a notice (the "Reset Notice") indicating
whether the Company has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread
or spread multiplier, if applicable) and (ii) the provisions, if any,
for redemption during the period from such Optional Reset Date to the
next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity Date of such Security (each such period a
"Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which
such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) provided for in the Reset Notice
and establish an interest rate (or a spread or spread multiplier used
to calculate such interest rate, if applicable) that is higher than
the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in
Section 106, notice of such higher interest rate (or such higher
spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with
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respect to which the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have
validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread
or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount thereof
plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the
procedures set forth in Article Thirteen for repayment at the option
of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such
Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may,
by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional
Reset Date.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any, on) and
(subject to Sections 305 and 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any Coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and
the bearer of any Coupon as the absolute owner of such Security or
Coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such
Security or Coupons be overdue, and none of the Company, the Trustee
or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
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Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any
depositary, as a Holder, with respect to such global Security or
impair, as between such depositary and owners of beneficial interests
in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities and Coupons so delivered to
the Trustee shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee
for cancellation. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their
disposal delivered to the Company unless by Company Order the Company
shall direct that cancelled Securities be returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
SECTION 311. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
Currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of
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any particular series, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in
a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
SECTION 312. Appointment and Resignation of Successor Exchange Rate
Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Currency
other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of
this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will cause the Exchange Rate Agent to make
the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301. Subject to Section 312(b)
below, any Exchange Rate Agent may be removed at any time without
cause by the Company.
(b) No resignation, or removal, of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this
Section shall become effective until the acceptance of appointment by
the successor Exchange Rate Agent as evidenced by a written instrument
delivered to the Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of
one or more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those series (it
being understood that any such successor Exchange Rate Agent may be
appointed with respect to the Securities of one or more or all of such
series and that, unless otherwise specified pursuant to Section 301,
at any time there shall only be one Exchange Rate Agent with respect
to the Securities of any particular series that are originally issued
by the Company on the same date and that are initially denominated
and/or payable in the same Currency).
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly
provided for and the obligation of the Company to pay any Additional
Amounts as contemplated by Section 1005) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all Coupons, if any, appertaining
thereto(other than (i) Coupons appertaining to Bearer
Securities surrendered in exchange for Registered
Securities and maturing after such exchange, whose
surrender is not required or has been waived as
provided in Section 305, (ii) Securities and Coupons of
such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in
Section 306, (iii) Coupons appertaining to Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or
any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
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redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for
such purpose an amount in the Currency in which the
Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein
provided for relating to the satisfaction and
discharge of this Indenture as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the
obligations of the Trustee to any Authenticating Agent under Section
611 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the Coupons and this Indenture, to the payment either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the
extent required by law.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series, or any related Coupon, when such interest or
Coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of the Securities of that series and
Article 12; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture or the Securities
of that series which affects or is applicable to the
Securities of that series (other than a default in the
performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in this Section or which
has expressly been included in this Indenture solely for the
benefit of one or more series of Securities other than that
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 the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or a
Principal Subsidiary a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company or a Principal Subsidiary under the Federal
Bankruptcy Code or any similar state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or a Principal
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Subsidiary or of any substantial part of the consolidated
property of the Company, or ordering the winding up or
liquidation of the Company's affairs, and the continuance of
any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(6) the institution by the Company or a Principal Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or
the written consent by the Company or a Principal Subsidiary
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by the Company or a Principal
Subsidiary of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code
or any similar state law, or the written consent by the
Company or a Principal Subsidiary to the filing of any such
petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official)
of the Company or a Principal Subsidiary or of any
substantial part of the consolidated property of the
Company, or the making by the Company or a Principal
Subsidiary of an assignment for the benefit of creditors, or
the admission by the Company or a Principal Subsidiary in
writing of its inability to pay its debts generally as they
become due; or
(7) an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which
there may be secured or evidenced, any indebtedness of the
Company or any Principal Subsidiary for money borrowed,
whether such indebtedness now exists or shall hereafter be
created, shall happen and shall result in such indebtedness
in principal amount in excess of $10,000,000 becoming or
being declared due and payable prior to the date on which it
would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such
indebtedness shall not have been discharged, within a period
of 30 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such
series, a written notice specifying such event of default
and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be
discharged and stating that such notice is a "Notice of
Default" hereunder; or
(8) any other Event of Default provided with respect to
Securities of that series.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing (other than an Event of
Default specified in Section 501(5) or (6)), then in every such case
the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of
all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such amount shall
become immediately due and payable. If an Event of Default specified
in Section 501(5) or (6) with respect to the Securities of any series
at the time Outstanding occurs and is continuing, then in every such
case the principal amount (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion
of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series shall become and be
immediately due and payable without any declaration or other action on
the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter provided in this
Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series (or of all series, as the case
may be), by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series),
(A) all overdue interest on all Outstanding Securities of
that series (or of all series, as the case may be) and
any related Coupons,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all
series, as the case may be) which has become due
otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate or rates
prescribed therefor in such Securities,
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(C) to the extent lawful, interest on 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, disbursements
and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than
the non-payment of amounts of principal of (or premium, if
any, on) or interest on Securities of that series (or of all
series, as the case may be) which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security and any related Coupon when such
interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee
for the benefit of the Holders of all Securities which are of the same
series as such Security and related Coupons, the whole amount then due
and payable on such Securities and Coupons for principal (and premium,
if any) and interest, and interest on any overdue principal (and
premium, if any) and, to the extent lawful, on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon
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such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) 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 (or of all
series, as the case may be) by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or such Securities or in aid of the
exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities
or Indexed Securities as may be specified in the terms of
such series, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
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and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
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 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and Coupons
in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities or Coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on
the Securities and Coupons in respect of which or for
the benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such
Securities and Coupons for principal (and premium, if
any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related Coupons shall
have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities (including the fees and expenses of its counsel)
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other Holder of
Securities of any other series or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all Holders of Securities of
the same series.
SECTION 508. 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, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal
of (and premium, if any, on) and (subject to Section 307) interest on,
such Security or payment of such Coupon on the respective Stated
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Maturities expressed in such Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders of Securities and Coupons shall be
restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons
in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the
Holders 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 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of
such 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
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to the Securities of such series and any Coupons appertaining thereto,
provided that in each case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the
Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any
past default with respect to such series and its consequences, except
a default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security of such series or
any related Coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, any 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 Event of Default or impair any
right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of
such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case
of a Default in the payment of the principal of (or premium, if any,
on) or interest on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if
and so long as one or more Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest
of the Holders of Securities of such series and any related Coupons;
and provided, further, that in the case of any Default of the
character specified in Section 501(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least
30 days after the occurrence thereof. The Trustee shall not be
charged with knowledge of an Event of Default unless a Responsible
Officer of the Trustee obtains actual knowledge of such event.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) 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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may request and, in the
absence of bad faith on its part, shall be entitled to rely
upon an Officers' Certificate;
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(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of
any series or any related Coupons pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part
of (or for the supervision of) any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture. The Trustee
shall not be required 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; and
(9) the Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture and no implied
duties shall be read into this Indenture against the
Trustee.
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SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any Coupons shall be
taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or Coupons,
except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder and that the statements made by it
in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and Coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
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disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or willful misconduct; and
(3) to indemnify the Trustee and its directors, officers, agents
and employees for, and to hold each of them harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder, 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; provided, however, that:
(i) while maintaining absolute control over its own defense,
the Trustee shall cooperate and consult with the Company in
preparing such defense; and (ii) while maintaining absolute
control over its rights to the settlement of any claim, the
Trustee shall consult with the Company with regard to any
such settlement.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have
a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
payment of principal of (and premium, if any, on) or interest on
particular Securities or any Coupons.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have
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 Federal, State, territorial or
District of Columbia 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. 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 608. 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
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until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it by the provisions of TIA Section 310(b) with
respect to Securities of any series after written request
therefor by the Company or by any Holder of a Security of
such series who has been a bona fide Holder of a Security of
such series for at least six months, or
(2) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a
Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject
to TIA Section 315(e), any Holder who has been a bona fide
Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities of such series
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all
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of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor trustee with
respect to the Securities of any series shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series to the Holders of Securities of such series
in the manner provided for in Section 106. Each notice shall include
the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
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shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company 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. Whenever there is a
successor Trustee with respect to one or more (but less than all)
series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the
provisos to the respective definitions of those terms in Section 101
which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person
shall be qualified and eligible under this Article.
SECTION 610. 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
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any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series and the
Trustee shall give written notice of such appointment to all Holders
of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 106.
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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly
furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States 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 corporation publishes reports of
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condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of 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 and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall give written notice
of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank (National Association),
as Trustee
By:______________________________________________
Authenticating Agent
By:_______________________________________________
Authorized Officer
SECTION 612. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company
or the Trustee or any agent of either of them 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 TIA Section
312, 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 TIA Section
312(b). The Trustee shall comply with all obligations imposed upon it
pursuant to TIA Section 312.
SECTION 702. Reports by Trustee.
Within 60 days after September 15 of each year commencing with the
first September 15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall transmit to the Holders of
Securities, in the manner and to the extent provided in TIA Section
313(c), a brief report dated as of such September 15 if required by
TIA Section 313. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when the
Securities are listed on any stock exchange.
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SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall
file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease all or substantially all of the property
and assets of the Company and its Subsidiaries on a consolidated
basis, to any Person, unless:
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(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company and its Subsidiaries on a consolidated
basis (A) shall be a corporation, limited liability company,
partnership or trust organized and validly existing under
the laws of the United States of America, any state thereof
or the District of Columbia and (B) shall expressly assume,
by an indenture supplemental hereto, executed by the
successor Person and delivered to the Trustee, in form
satisfactory to the Trustee, the Company's obligation for
the due and punctual payment of the principal of (and
premium, if any, on) and interest on all the Securities and
the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(3) the Company or such successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction
have been complied with.
This Section shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances,
leases and transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company and its Subsidiaries on a
consolidated basis to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as
the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner
described in Section 801), except in the case of a lease, shall be
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discharged of all obligations and covenants under this Indenture and
the Securities and the Coupons and may be dissolved and liquidated
SECTION 803. Assignment of Rights.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or
indirect wholly-owned Subsidiary of the Company; provided, that in the
event of any such assignment, the Company will remain liable for all
of its respective obligations. Subject to Section 609, the foregoing
provisions of this Section 803, and Section 802, this Indenture may
not otherwise be assigned by the parties hereto. This Indenture will
be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any
related Coupons (and if such covenants are to be for the
benefit of less than all series of Securities, stating that
such covenants are being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
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Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided
that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as contemplated by Sections 201 and 301; or
(8) 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 609(b); or
(9) to close this Indenture with respect to the authentication
and delivery of additional series of Securities, to cure any
ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other
provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
or to amend or supplement any provision contained herein or
in any supplemental indenture; provided such action shall
not adversely affect the interests of the Holders of
Securities of any series and any related Coupons in any
material respect; or
(10) 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 Sections 401, 1402 and 1403; 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.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affect such series of Securities 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 of such series affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security of such series, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay Additional
Amounts contemplated by Section 1005 (except as contemplated
by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue
Discount Security of such series that would be due and
payable upon acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or change the redemption provisions
of any Security of such series, or adversely affect any
right of repayment at the option of any Holder of any
Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series
or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, as the
case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental
indenture, for any waiver of compliance with certain
provisions of this Indenture which affect such series or
certain defaults applicable to such series hereunder and
their consequences provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting with
respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture
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which affect such series cannot be modified or waived
without the consent of the Holder of each Outstanding
Security of such series.
Any such supplemental indenture adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of
such series, shall not affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
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executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related Coupons that it will duly
and punctually pay the principal of (and premium, if any, on) and
interest on the Securities of that series in accordance with the terms
of the Securities, any Coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, any interest installments
due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of such series (but
not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) 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 the Company in respect of the
Securities of such series relating thereto and this Indenture may be
served. If Securities of a series are issuable as Bearer Securities,
the Company shall maintain, subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for
such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be
presented or surrendered for payment and such notices to and demands
upon the Company in respect of the Securities of that series and this
Indenture may be served ; provided, however, that if the Securities of
such series are listed on The Stock Exchange of the United Kingdom and
the Republic of Ireland or the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock
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exchange shall so require, the Company shall maintain a Paying Agent
in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of such
series are listed on such exchange. The Company 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 Company
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 of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be
presented and surrendered for payment at the place specified for the
purpose with respect to such Securities as provided in or pursuant to
this Indenture, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and
demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with
respect to Bearer Securities shall be made at any office or agency in
the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in
the United States; provided, however, that if amounts owing with
respect to any Bearer Securities shall be payable in Dollars,
payment of the principal of, any premium or interest on and any
Additional Amounts with respect to any such Security may be made at
the Corporate Trust Office of the Trustee or any office or agency
designated by the Company in The City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or
Additional Amounts at all offices outside the United States maintained
for such purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company
shall 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. Unless otherwise provided in or pursuant
to this Indenture, the Company hereby designates as the Place of
Payment for each series The City of New York, and initially appoints
the office or agency of the Corporate Trust Office of the Trustee for
such purpose. Pursuant to Section 301(5) of this Indenture, the
Company may subsequently appoint a place or places in addition to or
other than The City of New York where such Securities may be payable.
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SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related Coupons, it will,
on or before each due date of the principal of (and premium, if any,
on) 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 in
the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) 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 disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related Coupons, it will, prior to or on
each due date of the principal of (and premium, if any, on) or
interest on any Securities of that series, deposit with a Paying Agent
a sum (in the Currency described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) and interest on Securities of such
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this
Indenture;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the
making of any payment of principal of (or premium, if any,
on) or interest on the Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
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Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if
any, on) or interest on any Security of any series, or any Coupon
appertaining thereto, and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of
such Security or Coupon shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be
mailed to Holders of Registered Securities 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 publication
or mailing, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year and promptly following any request therefor
received by the Company from the Trustee, an Officer's Certificate
from the principal executive officer, principal financial officer,
treasurer or principal accounting officer as to his or her knowledge
of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1004, such compliance
shall be determined without regard to any period of grace or
requirement of notice under this Indenture. The Company will deliver
to the Trustee, within 5 days after the occurrence thereof, written
notice of any event which after notice or lapse of time or both would
become an Event of Default pursuant to clause (4) of Section 501.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder in respect of any tax, assessment or
governmental charge ("Additional Amounts"), the Company will pay to
the Holder of any Security of such series or any Coupon appertaining
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thereto such Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of
any related Coupon or the net proceeds received on the sale or
exchange of any Security of a series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for by
the terms of such series established pursuant to Section 301 to the
extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will
not bear interest prior to Maturity, the first day on which a payment
of principal (and premium, if any) is made), and at least 10 days
prior to each date of payment of principal (and premium, if any) or
interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether
such payment of principal of (and premium, if any, on) or interest on
the Securities of that series shall be made to Holders of Securities
of that series or any related Coupons who are not United States
Persons without withholding for or on account of any tax, assessment
or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities
of that series or related Coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. In the event that the Trustee or any Paying
Agent, as the case may be, shall not so receive the above-mentioned
certificate, then the Trustee or such Paying Agent shall be entitled
to (i) assume that no such withholding or deduction is required with
respect to any payment of principal (and premium, if any) or interest
with respect to any Securities of a series or related Coupons until it
shall have received a certificate advising otherwise and (ii) to make
all payments of principal (and premium, if any) and interest with
respect to the Securities of a series or related Coupons without
withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in
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reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as
a whole and that the loss thereof is not disadvantageous in any
material respect to any Holder.
SECTION 1007. Limitations on Liens.
(a) So long as any of the Securities or Coupons appertaining thereto
shall remain outstanding, the Company will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien of any kind upon any of its or their property or assets, now
owned or hereafter acquired, without making effective provision
whereby all of the Securities shall be directly secured equally and
ratably with the obligation or liability secured by such Lien, except
for:
(i) Liens existing as of the date of this Indenture;
(ii) Liens (including Sale and Lease-back Transactions) on
any property acquired, constructed or improved after
the date of this Indenture, which are created or
assumed contemporaneously with, or within 180 days
after, such acquisition or completion of such
construction or improvement, or within six months
thereafter pursuant to a commitment for financing
arranged with a lender or investor within such 180-day
period, to secure or provide for the payment of all or
a portion of the purchase price of such property or the
cost of such construction or improvement incurred after
the date of this Indenture (or prior to the date of
this Indenture in the case of any construction or
improvement which is at least 40% completed at the date
of this Indenture) or, in addition to Liens
contemplated by clauses (iii) and (iv) below, Liens on
any property existing at the time of acquisition
thereof (including acquisition through merger or
consolidation); provided, that any such Lien (other
than a Sale and Lease-back Transaction meeting the
requirements of this clause) does not apply to any
property theretofore owned by the Company or a
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Subsidiary other than, in the case of any such
construction or improvement, any theretofore unimproved
real property on which the property so constructed, or
the improvement, is located;
(iii) Liens existing on any property of a Person at the time
such Person is merged with or into, or consolidates
with, the Company or a Subsidiary;
(iv) Liens on any property of a Person (including, without
limitation, shares of stock or debt securities) or its
subsidiaries existing at the time such Person becomes a
Subsidiary, is otherwise acquired by the Company or a
Subsidiary or becomes a successor to the Company
pursuant to Section 802;
(v) Liens to secure an obligation or liability of a
Subsidiary to the Company or to another Subsidiary;
(vi) Liens in favor of the United States of America or any
State thereof, or any department, agency or
instrumentality or political subdivision of the United
States of America or any State thereof, to secure
partial progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part
of the purchase price or the cost of constructing or
improving the property subject to such Liens;
(vii) Liens to secure tax-exempt private activity bonds under
the Internal Revenue Code of 1986, as amended;
(viii) Liens arising out of or in connection with a Sale and
Lease-back Transaction if the net proceeds of such Sale
and Lease-back Transaction are at least equal to the
fair value (as determined by the Board of Directors,
the Chairman of the Board, the Vice Chairman of the
Board, the President or the principal financial officer
of the Company) of the property subject to such Sale
and Lease-back Transaction;
(ix) Liens for the sole purpose of extending, renewing or
replacing in whole or in part indebtedness secured by
any Lien referred to in the foregoing clauses (i) to
(viii), inclusive, or in this clause (ix); provided,
however, that the principal amount of indebtedness
secured thereby shall not exceed the principal amount
of indebtedness so secured at the time of such
extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to
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all or a part of the property which secured the Lien so
extended, renewed or replaced (plus improvements on
such property);
(x) Liens arising out of or in connection with a Sale and
Lease-back Transaction in which the net proceeds of
such Sale and Lease-back Transaction are less than the
fair value (as determined by the Board of Directors,
the Chairman of the Board, the Vice Chairman of the
Board, the President or the principal financial officer
of the Company) of the property subject to such Sale
and Lease-back Transaction if the Company provides in a
Board Resolution that it shall, and in any such case
the Company covenants that it will, within 180 days of
the effective date of any such arrangement (or in the
case of (C) below, within six months thereafter
pursuant to a firm purchase commitment entered into
within such 180-day period), apply an amount equal to
the fair market value (as so determined) of such
property (A) to the redemption of Securities of any
series which are, by their terms, at the time
redeemable or the purchase and retirement of
Securities, if permitted, which Securities shall, in
any such case, be delivered to the Trustee for
cancellation pursuant to Section 309, (B) to the
payment or other retirement of Funded Debt incurred or
assumed by the Company which ranks senior to or pari
passu with the Securities or of Funded Debt incurred or
assumed by any Subsidiary (other than, in either case,
Funded Debt owned by the Company or any Subsidiary) or
(C) to the purchase of property (other than the
property involved in such sale); and
(xi) Liens on accounts receivable (and related general
intangibles and instruments) arising out of or in
connection with a sale or transfer by the Company or
such Subsidiary of such accounts receivable;
(xii) Permitted Liens; and
(xiii) Liens other than those referred to in clauses (i)
through (xii) above which are created, incurred or
assumed after the date of this Indenture (including
those in connection with purchase money mortgages,
Capitalized Lease Obligations and Sale and Lease-back
Transactions), provided that the aggregate amount of
indebtedness secured by such Liens, or, in the case of
Sale and Lease-back Transactions, the Value of such
Sale and Lease-back Transactions, referred to in this
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clause (xiii), does not exceed 15% of Consolidated
Total Assets.
(b) If at any time the Company or any Subsidiary shall create, incur,
assume or suffer to exist any Lien and if paragraph (a) of this
Section 1007 requires that the Securities be secured equally and
ratably with the obligation or liability secured by such Liens, the
Company will deliver to the Trustee
(i) an Officer's Certificate stating that the covenant of the
Company contained in paragraph (a) of this Section 1007 has
been complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with, and that any instruments executed by the
Company in the performance of such covenant comply with the
requirements of such covenant.
In the event that the Company shall hereafter secure the Securities
equally and ratably with any other obligation or liability pursuant to
the provisions of this Section 1007, the Trustee is hereby authorized
to enter into an indenture or agreement supplemental hereto.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1007 with respect to
the Securities of any series or such other term, provision or
condition to which this Section 1008 may be applicable pursuant to
Section 301 if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of
such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance
with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by
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Section 301 for Securities of any series) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of the Securities of any
series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be
redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Securities to be
redeemed pursuant to Section 1103. In the case of any redemption of
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series;
provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less
than the minimum authorized denomination for Securities of such series
established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any 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 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date,
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to each Holder of Securities to be redeemed. Failure to give notice
by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other Securities
or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date
payable as provided in Section 1106) will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to
be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption
must be accompanied by all Coupons maturing subsequent to
the Redemption Date or the amount of any such missing Coupon
or Coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such
Redemption Date pursuant to Section 305 or otherwise, the
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last date, as determined by the Company, on which such
exchanges may be made,
(9) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining
unredeemed, and
(10) the CUSIP number or the Euroclear or the CEDEL S.A.
reference numbers of such Securities, if any (or any other
numbers used by a depositary to identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the
Redemption Price of, and (except as otherwise provided as contemplated
by Section 301) accrued interest on, all the Securities which are to
be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together
with accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if
the same were interest-bearing, cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the
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Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and only upon presentation and surrender of Coupons for
such interest, and provided, further, that (except as otherwise
provided as contemplated by Section 301) installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing Coupons,
or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by Coupons
shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Coupons.
If any Security called for redemption or portion thereof 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 of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized
denomination as requested by such Holder, in aggregate principal
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amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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 mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (1) deliver to the
Trustee Outstanding Securities of such series (other than any
previously called for redemption) theretofore purchased or otherwise
acquired by the Company together in the case of any Bearer Securities
of such series with all unmatured Coupons appertaining thereto, and/or
(2) receive credit for the principal amount of Securities of such
series which have been previously delivered to the Trustee by the
Company or for Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of the same series required to
be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, 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 mandatory sinking fund payment
shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) and the portion thereof, if any, which
is to be satisfied by delivering or crediting Securities of that
series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In
the case of the failure of the Company to deliver such certificate,
the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to
deliver or credit Securities as provided in Section 1202 and without
the right to make any optional sinking fund payment, if any, with
respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 1106 and
1107.
On or prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003)
in cash a sum equal to any interest that will accrue to the date fixed
for redemption of Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid
into such sinking fund on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not give
the next succeeding notice of the redemption of Securities of such
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series through the operation of the sinking fund. Any such unused
balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the
Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase,
in the open market or otherwise, at a purchase price for such
Securities (excluding accrued interest and brokerage commissions,
which will be paid by the Company separately through the Trustee or
any Paying Agent) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the
principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the
Repayment Date it will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (or, if so provided by the
terms of the Securities of any series, a percentage of the principal)
of, and (except if the Repayment Date shall be an Interest Payment
Date and unless otherwise specified as contemplated by Section 301)
accrued interest on, all the Securities or portions thereof, as the
case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on
the reverse of such Securities. To be repaid at the option of the
Holder, any Security so providing for such repayment, with the "Option
to Elect Repayment" form on the reverse of such Security duly
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completed by the Holder (or by the Holder's attorney duly authorized
in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other
place or places or which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with
the terms of such Security, the principal amount of such Security to
be repaid, in increments of the minimum denomination for Securities of
such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal
amount of such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a
part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof,
exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case may
be, to be repaid shall become due and payable and shall be paid by the
Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of
such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the Coupons for
such interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions,
together with all Coupons, if any, appertaining thereto maturing after
the Repayment Date, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued interest,
if any, to the Repayment Date; provided, however, that unless
otherwise specified as contemplated by Section 301: (a) Coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable
only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and only upon presentation and
surrender of such Coupons; and (b) in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is
on or prior to the Repayment Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as
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such at the close of business on the relevant Record Dates according
to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant Coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the
face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee
or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made as provided in the preceding sentence,
such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by Coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those Coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered
Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount
equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified pursuant to Section 301 for Securities
of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402
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or covenant defeasance of or within a series under Section 1403, in
each case in accordance with the terms of such Securities and in
accordance with this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities and any related Coupons on
the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any
related Coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this
Indenture referred to in (A) and (B) below, and to have satisfied all
its other obligations under such Securities and any related Coupons
and this Indenture insofar as such Securities and any related Coupons
are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities
and any related Coupons to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any, on) and
interest on such Securities and any related Coupons when such payments
are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1005, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section 1402 notwithstanding the prior
exercise of its option under Section 1403 with respect to such
Securities and any related Coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the
Company shall be released from its obligations under Section 1007,
and, if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities and any
related Coupons on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any related Coupons shall thereafter be deemed not
to be "Outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed
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"Outstanding" for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such Outstanding
Securities and any related Coupons, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section
501(4) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any
related Coupons shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a
series and any related Coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply
with the provisions of this Article Fourteen applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such
Securities and any related Coupons, (A) an amount (in such
Currency in which such Securities and any related Coupons
are then specified as payable at Stated Maturity), or (B)
Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such
Securities are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
(without consideration of any reinvestment thereof) will
provide, not later than one day before the due date of any
payment of principal (including any premium) and interest,
if any, under such Securities and any related Coupons, money
in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and
premium, if any, on) and interest on such Outstanding
Securities and any related Coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal (and
premium, if any) or installment or interest and (ii) any
mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any related
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Coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and
of such Securities and any related Coupons; provided that
the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such Government Obligations to
said payments with respect to such Securities and any
related Coupons. Before such a deposit, the Company may
give to the Trustee, in accordance with Section 1102 hereof,
a notice of its election to redeem all or any portion of
such Outstanding Securities at a future date in accordance
with the terms of the Securities of such series and Article
Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities and any related Coupons shall have occurred and
be continuing on the date of such deposit or, insofar as
paragraphs (5) and (6) of Section 501 are concerned, at any
time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or
(y) since the date of execution of this Indenture, there has
been a change in the applicable United States federal income
tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any related Coupons will not
recognize income, gain or loss for United States federal
income tax purposes as a result of such defeasance and will
be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities
and any related Coupons will not recognize income, gain or
loss for United States federal income tax purposes as a
result of such covenant defeasance and will be subject to
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United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms,
conditions or limitations in connection therewith pursuant
to Section 301.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the
defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied
with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively for
purposes of this Section 1405, the "Trustee") pursuant to Section 1404
in respect of such Outstanding Securities and any related Coupons
shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any related Coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any related
Coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (a) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to the terms
of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 1404(1) has been made in respect
of such Security, or (b) a Conversion Event occurs or by the terms of
any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security
and any related Coupons shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of
(premium, if any, on), and interest, if any, on such Security as they
become due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount
or other property deposited in respect of such Security into the
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Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange
Rate for such Currency in effect on the third Business Day prior to
each payment date, except, with respect to a Conversion Event, for
such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of such
Outstanding Securities and any related Coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and such Securities and any related Coupons shall be
revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company
makes any payment of principal of (or premium, if any, on) or interest
on any such Security and any related Coupon following the
reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Securities and any related Coupons
to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or
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take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in The City of New York, or, if
Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such other place outside of the
United States as the Trustee shall determine. Notice of every meeting
of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided for in
Section 106, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in The City of New York, or, if Securities of such series
are to be issued as Bearer Securities, in London for such meeting and
may call such meeting for such purposes by giving notice thereof as
provided in paragraph (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
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SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however,
that, if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given
by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled
to vote such specified percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, except
as limited by the proviso to Section 902, any resolution with respect
to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and
the related Coupons, whether or not present or represented at the
meeting.
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Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether
such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1502(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by
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vote of the Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in Section
101); provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series
or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities
of any series shall be prepared by the Secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
* * * * *
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This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
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______________________________________________________________________
______________________________________________________________________
NEWELL CO.,
as Issuer
and
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Trustee
________________________________
INDENTURE
Dated as of November 1, 1995
______________________________
Providing for issuance of Subordinated Debt Securities in Series
______________________________________________________________________
______________________________________________________________________
Cross-Reference Table*
Section of
Trust Indenture
Act of 1939, as amended Section of Indenture
- ----------------------- --------------------
SECTION 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(3) . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 608
SECTION 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 612
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 612
SECTION 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 701
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 701
SECTION 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 702
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 702
SECTION 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 602
SECTION 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . 104(e); 1505(a)
SECTION 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1003
SECTION 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 107
- --------------------
*Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS*
Page
----
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . 2
CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . 3
Conversion Event . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . 3
Coupon . . . . . . . . . . . . . . . . . . . . . . . 3
covenant defeasance . . . . . . . . . . . . . . . . 3
Currency . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . 4
defeasance . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . 4
Dollar; $ . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . . . . . . . 4
European Monetary System . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . 4
Exchange Date . . . . . . . . . . . . . . . . . . . 4
Exchange Rate Agent . . . . . . . . . . . . . . . . 4
Exchange Rate Officer's Certificate . . . . . . . . 4
Federal Bankruptcy Code . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . . . . . . . 4
- ------------------------
*Note: This Table of Contents shall not, for any purpose, be
deemed to be a part of this Indenture.
- iii -
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Government Obligations . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . 6
Market Exchange Rate . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . 6
Notice of Default . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . 7
Optional Reset Date . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . 9
Repayment Date . . . . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . . . . 9
Reset Notice . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . . 9
Security Register; Securities Registrar . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . 9
Subsequent Interest Period . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act; TIA . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . . 10
United States Person . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . 10
Voting Stock . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . 12
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SECTION 105. Notices, etc. to Trustee and Company . . . . . . . . 14
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . 15
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . 16
SECTION 108. Effect of Headings and Table of Contents . . . . . . 16
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . 16
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . 16
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . 16
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . 16
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication . . 18
SECTION 203. Securities Issuable in Global Form . . . . . . . . . 18
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 19
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery and Dating . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 26
SECTION 305. Registration of Transfer and Exchange . . . . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 32
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset . . . . . . . . . . . . . . 33
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SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . 36
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . 37
SECTION 310. Computation of Interest . . . . . . . . . . . . . . 37
SECTION 311. Securities in Foreign Currencies . . . . . . . . . . 37
SECTION 312. Appointment and Resignation of Successor Exchange
Rate Agent . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . 38
SECTION 402. Application of Trust Money . . . . . . . . . . . . . 40
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . 40
SECTION 502. Acceleration of Maturity; Rescission and Annulment . 42
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 43
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . 44
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 45
SECTION 506. Application of Money Collected . . . . . . . . . . . 45
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . 45
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 46
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . 46
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . 47
- vi -
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SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . 47
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . 47
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . 47
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . 48
ARTICLE SIX
The Trustee
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . 48
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . 49
SECTION 603. Trustee Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . 50
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . 50
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . 50
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . 51
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . 51
SECTION 608. Resignation and Removal; Appointment of Successor . 52
SECTION 609. Acceptance of Appointment by Successor . . . . . . . 53
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . 55
SECTION 611. Appointment of Authenticating Agent . . . . . . . . 55
SECTION 612. Preferential Collection of Claims Against Company . 57
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Disclosure of Names and Addresses of Holders . . . . 57
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . 57
- vii -
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SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . 58
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 802. Successor Person Substituted . . . . . . . . . . . . 59
SECTION 803. Assignment of Rights . . . . . . . . . . . . . . . . 59
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders . 60
SECTION 902. Supplemental Indentures with Consent of Holders . . 61
SECTION 903. Execution of Supplemental Indentures . . . . . . . . 62
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . 62
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . 63
SECTION 906. Reference in Securities to Supplemental Indentures . 63
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . 63
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium, if any, and Interest 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . 63
- viii -
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SECTION 1003. Money for Securities Payments to Be Held in Trust . 65
SECTION 1004. Statement as to Compliance . . . . . . . . . . . . . 66
SECTION 1005. Additional Amounts . . . . . . . . . . . . . . . . . 66
SECTION 1006. Corporate Existence . . . . . . . . . . . . . . . . 67
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . 68
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . 68
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . . . . . . 70
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . 71
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . 72
ARTICLE THIRTEEN
Repayment at Option of Holders
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . 74
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . 74
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . 74
- ix -
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SECTION 1304. When Securities Presented for Repayment Become Due
and Payable . . . . . . . . . . . . . . . . . . . . 75
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . 76
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . 77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . 77
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . 79
SECTION 1406. Reinstatement. . . . . . . . . . . . . . . . . . . . 80
ARTICLE FIFTEEN
Meetings of Holders of Securities
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . 80
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . 81
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . 81
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . 81
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . 83
SECTION 1506. Counting Votes and Recording Action of Meetings . . 83
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
- x -
INDENTURE, dated as of November 1, 1995, between Newell Co., a
corporation duly organized and existing under the laws of the State of
Delaware (the "Company") having executive offices located at 29 East
Stephenson Street, Freeport, Illinois 61032-0943, and The Chase
Manhattan Bank (National Association), a national banking association
duly organized and existing under the laws of the United States, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture
provided. This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as
the singular;
(2) 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, and the terms "cash
transaction" and "self-liquidating paper", as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture
Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States
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 such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A" or "B" means "A or B or both" and not "either A
or B but not both").
Certain terms are defined in certain other Articles hereof
(principally Article Three).
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1005.
"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" of any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community
of each such place. Where successive publications are required to be
made in Authorized Newspapers, such publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered Security.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions
in that Place of Payment or other location are authorized or obligated
by law or executive order to close.
- 2 -
"CEDEL S.A." means Cedel Bank, societe anonyme, or its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its Vice Chairman,
its President, any Vice President, its Treasurer or an Assistant
Treasurer, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or
within the international banking community for the settlement of
transactions, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust
business shall be administered, which office on the date of execution
of this Indenture is located at 4 Chase MetroTech Center, Brooklyn,
New York 11245, Attention: Institutional Trust Group, except that with
respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of
the Trustee at which, at any particular time, its corporate agency
business shall be conducted, which office or agency on the date of
execution of this Indenture is located at One Chase Manhattan Plaza,
Level 1B, New York, New York 10081, Attention: Institutional Trust
Group Window.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"covenant defeasance" has the meaning specified in Section 1403.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any
recognized confederation or association of such governments as legal
tender for the payment of public and private debts.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
- 3 -
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1402.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as
Depository by the Company in or pursuant to this Indenture, which
Person must be, to the extent required by applicable law or
regulation, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and, if so provided with respect to any
Security, any successor to such Person. If at any time there is more
than one such Person, "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with
respect to such Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated
pursuant to Section 301 or Section 312.
"Exchange Rate Officer's Certificate" means a tested telex, facsimile
(with copy to follow by U.S. Mail) or a certificate setting forth (i)
the applicable Market Exchange Rate and (ii) the Dollar or Foreign
Currency amounts of principal (and premium, if any) and interest, if
any (on an aggregate basis and on the basis of a Security having the
lowest denomination principal amount determined in accordance with
Section 302 in the relevant Currency), payable with respect to a
Security of any series on the basis of such Market Exchange Rate, sent
(in the case of a telex) or signed (in the case of a facsimile or
certificate) by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
- 4 -
"Foreign Currency" means any Currency other than Currency of the
United States.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301,
securities which are (i) direct obligations of the government or
governments 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 or governments which issued the Currency in which
the Securities of such series are payable, the payment of which is
unconditionally guaranteed by such government or governments, which,
in either case, are full faith and credit obligations of such
government or governments payable in such Currency and are not
callable or redeemable at the option of the issuer or issuers thereof
and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or other amount with
respect to any such Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with
respect to any Coupon, shall mean the bearer thereof.
"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 301; provided, however, that,
if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more
series of Securities for which such Person is Trustee, this instrument
as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not
a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity and/or
interest to be paid thereon may be determined by reference to the
- 5 -
exchange rate of one or more specified Currencies relative to an index
or one or more equity or other indices and/or formulae or the price of
one or more specified commodities or by such other methods or formulae
as may be determined in accordance with this Indenture.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such
Original Issue Discount Security.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign
Currency on the other, the exchange rate between the relevant currency
unit and Dollars or such Foreign Currency calculated by the method
specified pursuant to Section 301 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency,
the noon (New York City time) buying rate for such Foreign Currency
for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be
purchased with the Foreign Currency from which conversion is being
made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency,
in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in
the event of the unavailability of any of the exchange rates provided
for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks
in New York City, London or another principal market for the Currency
in question, or such other quotations as the Exchange Rate Agent shall
deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be
used in respect of such Currency shall be that upon which a
non-resident issuer of securities designated in such Currency would
purchase such Currency in order to make payments in respect of such
securities.
"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 provided in or pursuant to this Indenture,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment or
otherwise.
"Notice of Default" has the meaning specified in Section 501(4).
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"Officers' Certificate" means a certificate signed by the Chairman,
the Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company.
"Optional Reset Date" has the meaning specified in Section 307(b).
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and
payable upon acceleration of the Maturity thereof pursuant to Section
502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities
and any Coupons appertaining thereto; 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;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as
provided herein; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by
TIA Section 313, (a) the principal amount of an Original Issue
Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would
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be (or shall have been declared to be) due and payable, at the time of
such determination, upon acceleration of the maturity thereof pursuant
to Section 502, (b) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that
shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to
Section 301, and (c) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
making such determination or calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or
any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or
premium, if any, on) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and
premium, if any, on) and interest on such Securities are payable as
specified pursuant to Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen
Coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to which
the mutilated, destroyed, lost or stolen Coupon appertains, as the
case may be.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
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"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be
repaid pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 307(b).
"Responsible Officer," when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer,
any trust officer or any assistant trust officer within the Corporate
Trust Office or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this
Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities
of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by
the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a Coupon representing such installment
of interest as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsequent Interest Period" has the meaning specified in Section
307(b).
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or
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more Subsidiaries, owns or controls directly or indirectly more than
50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed;
provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" or "TIA" shall mean,
to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant
to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of
that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership
or other entity created or organized in or under the laws of the
United States or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation
(irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the
happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond
yield computation principles.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture
(including any covenant 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 or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include: (1) a
statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement
that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether, in the
opinion of each such individual, such covenant or condition has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents. Any certificate or opinion of an
officer of the Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the certificate 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 or
representation by counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information
with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Where any Person is
required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form
one instrument.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the Outstanding
Securities of all series or one or more series, as the case
may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing.
If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to
this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such
series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a
combination of such instruments and any such record. Except
as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument
or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the TIA) conclusive
in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting
of Holders of Securities shall be proved in the manner
provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a
Holder, including a U.S. Depository that is a Holder of a
global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other
action provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies
to the beneficial owners of interests in any such global
Security through such U.S. Depository's standing
instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of
interest in any permanent global Security held by a U.S.
Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly
appointed in writing, any request, demand, authorization,
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direction, notice, consent, waiver or other action provided
in or pursuant to this Indenture to be made, given or taken
by Holders. If such a record date is fixed, the Holders on
such record date or their duly appointed proxy or proxies,
and only such Persons, shall be entitled to make, give or
take such request, demand, authorization, direction, notice,
consent, waiver or other action, whether or not such Holders
remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or
other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved 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 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, principal amount and serial numbers of
Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the
same, may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by
any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by
the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by
the Trustee to be satisfactory. The Trustee and the Company
may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security
is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The
ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the
same, may also be proved in any other manner which the
Trustee deems sufficient.
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(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at
its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date thirty (30)
days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, (1)
the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
by hand, telecopier (with confirmation of receipt) or certified or
registered mail (confirmation of receipt requested) to or with the
Trustee at its Corporate Trust Office, telecopier number (718) 242-
5886 or at any other address (or telecopier number) as may be
furnished in writing to the Company and the Holders by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing by hand,
telecopier (with confirmation of receipt) or certified or registered
mail (confirmation of receipt requested) to or with the Company
addressed to it at the address of its executive office specified in
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the first paragraph of this Indenture, telecopier number (815) 233-
8060, or at any other address (or telecopier number) as may be
previously furnished in writing to the Trustee and the Holders by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise expressly provided in or
pursuant to this Indenture) if in writing and mailed, first-class
postage prepaid, to each such 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 of
Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided. Any notice
mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. In case, by reason of
the suspension of or irregularities in regular mail service or by
reason of any other cause, it shall be impractical to mail notice of
any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be sufficient giving of such notice for
every purpose hereunder. Except as otherwise expressly provided
herein or otherwise specified with respect to any Securities pursuant
to Section 301, where this Indenture provides for notice to Holders of
Bearer Securities of any event, such notice shall be sufficiently
given to Holders of Bearer Securities if published in an Authorized
Newspaper in The City of New York and in such other city or cities as
may be specified in such Securities and, if such Securities are then
listed on any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the
Trustee that such stock exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the
giving of such notice. Any such notice shall be deemed to have been
given on the date of the first such publication. In case by reason of
the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities
as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein. Any request, demand,
authorization, direction, notice, consent or waiver required or
permitted under this Indenture shall be in the English language,
except that, if the Company so elects, any published notice may be in
- 15 -
an official language of the country of publication. 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be a 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 that 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 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in any Security or Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or Coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and
their successors hereunder and the Holders of Securities or Coupons,
any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF
1939, AS AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND
SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
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SECTION 113. Legal Holidays.
Unless otherwise provided as contemplated by Section 301, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity or
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 any Security or Coupon other than a provision in the Securities
of any series which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Stated Maturity
or Maturity, as the case may be, to such Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related Coupons shall be in the
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 or pursuant to this Indenture or any
indenture supplemental hereto, 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 any law or the rules of any
securities exchange or as may, consistently herewith, be determined by
the officers executing such Securities or Coupons as evidenced by
their execution of the Securities or Coupons. If the forms of
Securities or Coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or Coupons. Any
portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the
Security. Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have Coupons attached. The Trustee's
certificate of authentication on all Securities shall be in
substantially the form set forth in this Article. The definitive
Securities or Coupons shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities or
Coupons, as evidenced by their execution of such Securities or
Coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank (National
Association), as Trustee
By:______________________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then any such Security shall
represent such of the Outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to
time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section
303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable
Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel. The
provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the
Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the principal
amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303. Unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in permanent
global form shall be made to the Depository therefor, and the
Company, the Trustee and any agent of the Company and the Trustee
shall treat, for all purposes whatsoever, such Depository as the
Holder of such Security.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303,
set forth in, or determined in the manner provided in, an Officers'
Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all
of the following, as applicable (each of which (except for the matters
set forth in clauses (1), (2) and (19) below), if so provided, may be
determined from time to time by the Company with respect to unissued
Securities of the series and set forth in such Securities of the
series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
series of 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 Section 304, 305, 306, 906, 1107 or
1305 or the terms of such Securities);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of
the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which
such date or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, and
the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the rights, if any, to defer payments of interest on the
Securities by extending the interest payment periods and the
duration of such extension;
(6) the subordination terms of the Securities of the series;
(7) the place or places, if any, other than or in addition to
The City of New York, where the principal of (and premium,
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if any, on) and any interest on Securities of the series
shall be payable, any Registered Securities of the series
may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and, if
different than the location specified in Section 106, the
place or places where notices or demands to or upon the
Company in respect of the Securities of the series and this
Indenture may be served;
(8) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions
upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the
Company is to have that option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price
or prices at which, the Currency in which, and other terms
and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation and any provision for the remarketing of
any Securities that are so redeemed, repaid or purchased;
(10) if other than denominations of $25 and any integral multiple
thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and,
if other than the denomination of $5,000, the denomination
or denominations in which any Bearer Securities of the
series shall be issuable;
(11) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(12) 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 502 or the method by which such
portion shall be determined;
(13) if other than Dollars, the Currency in which payment of the
principal of (and premium, if any, on) or interest, if any,
on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated and the
particular provisions applicable thereto;
(14) whether the amount of payments of principal of (and premium,
if any, on) or interest on the Securities of the series may
be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such
amounts shall be determined;
- 20 -
(15) whether the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof,
in a Currency other than that in which such Securities are
denominated or stated to 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 in which such
Securities are denominated or stated to be payable and the
Currency in which such Securities are to be so payable;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) any provisions in modification of, in addition to or in lieu
of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(18) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such
events as may be specified;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect
to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(20) whether any Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
Coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities, whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or
without Coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange
such interests for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for
Bearer Securities of the series (if permitted by applicable
laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of the
series, and the circumstances under which and the place or
places where such exchanges may be made and if Securities of
the series are to be issuable in global form, the identity
of any initial depositary therefor; provided, that, unless
otherwise provided pursuant to this Section 301, the
Securities shall be issued as Registered Securities;
(21) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the
date of original issuance of the first Security of the
series to be issued;
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(22) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the
Regular Record Date for such interest, the manner in which,
or the Person to whom, any interest on any Bearer Security
of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons appertaining
thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(23) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, the form and/or terms of such
certificates, documents or conditions;
(24) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder (including any
modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the
terms of any such option);
(25) if the Securities of the series are to be convertible into
or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable; and
(26) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the
series (which terms shall not be inconsistent with the
requirements of the Trust Indenture Act or the provisions of
this Indenture).
All Securities of any one series and the Coupons appertaining to any
Bearer Securities of such series shall be substantially identical
except as to denomination, Currency of payments due thereunder, the
rate or rates of interest (if any) payable thereon and Stated Maturity
and except as may otherwise be provided in or pursuant to such Board
Resolution (subject to Section 303) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. Not all
Securities of any one series need be issued at the same time, and,
unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series. If any of the terms of the
Securities or Coupons of any series are established by action that is
specified in or authorized by one or more Board Resolutions and such
action is to be taken at or prior to the delivery of the Officers'
Certificate setting forth the terms of such series of Securities or
the manner in which such terms are to be determined or established,
then a copy of an appropriate record of such action(s) shall be
- 22 -
certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series of
Securities or the manner in which such terms are to be determined or
established.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any
such provisions, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $25 and any
integral multiple thereof and the Bearer Securities of such series,
other than the Bearer Securities issued in global form (which may be
of any denomination), shall be issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any Coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman, its Vice Chairman, its
President or any Vice President or the Treasurer of the Company, under
its corporate seal reproduced thereon attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the
Securities or Coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities or Coupons.
Securities or Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
together with any Coupon appertaining thereto, executed by the Company
to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided, further, that, unless
otherwise specified with respect to any series of Securities pursuant
to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such
Bearer Security shall have furnished a certificate in the form
established pursuant to Section 301 for such purpose, dated no earlier
than 15 days prior to the earlier of the date on which such Bearer
Security is delivered and the date on which any temporary Security
first becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security,
then, for purposes of this Section and Section 304, the notation of a
- 23 -
beneficial owner's interest therein upon original issuance of such
Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original
issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant
Coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time
and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth
procedures for the issuance of such Securities and determining terms
of particular Securities of such series such as interest rate,
maturity date, date of issuance and date from which interest shall
accrue.
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 TIA Sections
315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel substantially to the effect:
(a) that the form or forms of such Securities and any Coupons
have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities and any Coupons have been
established in conformity with the provisions of this
Indenture;
(c) that such Securities, together with any Coupons appertaining
thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance
with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
and other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights, (ii)
general equitable principles, (iii) limitations imposed by
any requirement that a claim (or a Foreign Currency judgment
in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or limitations imposed by governmental
authority to limit, delay or prohibit the making of payments
in a Foreign Currency or payments outside of the United
States; and (iv) such other qualifications as such counsel
shall conclude are customary or do not materially affect the
rights of Holders of such Securities and the Coupons
appertaining thereto (if any);
(d) that authentication and delivery of such Securities and any
Coupons and the execution and delivery of the supplemental
- 24 -
indenture, if any, by the Trustee will not violate the terms
of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any Coupons, and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any Coupons will
not contravene the certificate of incorporation or by-laws
of the Company or result in any violation of any of the
terms or provisions of any law, regulation, or material
indenture, mortgage or other agreement known to such Counsel
by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued
at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to the
preceding two paragraphs prior to or at the time of issuance of each
Security, but such documents shall be delivered prior to or at the
time of issuance of the first Security of such series. After any such
first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions
precedent provided for in this Indenture relating to authentication
and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Each Registered Security shall
be dated the date of its authentication, and each Bearer Security
shall be dated as of the date specified as contemplated by Section
301.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the
form of one or more global Securities, the Company shall execute and
the Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one or
more global Securities in 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 such global Security or Securities, (ii) shall be registered, if in
registered form, in the name of the Depository for such global
Security or Securities or the nominee of such Depository, (iii) shall
be delivered by the Trustee to such Depository or pursuant to such
Depository'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 certificated form, this Security may not be
transferred as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
- 25 -
Depository" or to such other effect as the Depository and the Trustee
may agree.
No Security or Coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need
not comply with Section 102 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more Coupons or without
Coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution
of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for
definitive Securities of such series, upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security, except as provided in or
pursuant to this Indenture, shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a
definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set
forth in or pursuant to this Indenture. Unless otherwise provided in
or pursuant to this Indenture with respect to a temporary global
- 26 -
Security, until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities, in aggregate principal
amount equal to the principal amount of such temporary global
Security, executed by the Company. On or after the Exchange Date such
temporary global Security shall be surrendered by the Depository to
the Trustee, as the Company's agent for such purpose, to be exchanged,
in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security, an equal
aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities
to be delivered in exchange for any such temporary global Security
shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary
global Security, upon such presentation by the Depository, such
temporary global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the
form established pursuant to Section 301; and provided, further, that
definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when
the account holder instructs Euroclear or CEDEL S.A., as the case may
be, to request such exchange on his behalf and delivers to Euroclear
or CEDEL S.A., as the case may be, a certificate in the form
established pursuant to Section 301, dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL S.A., the Trustee,
any Authenticating Agent appointed for such series of Securities and
each Paying Agent. Unless otherwise specified in such temporary
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person
at the offices of Euroclear or CEDEL S.A. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
- 27 -
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered hereunder, except
that, unless otherwise specified as contemplated by Section 301,
interest payable on a temporary global Security on an Interest Payment
Date for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euroclear and CEDEL S.A. on such
Interest Payment Date upon delivery by Euroclear and CEDEL S.A. to the
Trustee of a certificate or certificates in the form established
pursuant to Section 301, for credit without further interest on or
after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global
Security on such Interest Payment Date and who have each delivered to
Euroclear or CEDEL S.A., as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form established pursuant to
Section 301. Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs
of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of
the same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global
Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and CEDEL S.A. and
not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any
other office or agency of the Company 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,
the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by
the Trustee. The Trustee is hereby initially appointed as security
registrar (the "Security Registrar") for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
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Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee, one or more new
Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental
hereto, delivered as contemplated by Section 301, at the option of the
Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized
denomination and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office
or agency, with all unmatured Coupons and all matured Coupons in
default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of
such missing Coupon or Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at
any such office or agency in a permitted exchange for a Registered
Security of the same series and like tenor after the close of business
at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or
Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may
- 29 -
be, in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any permanent global Security shall be
exchangeable for definitive Securities only if (i) the Depository is
at any time unwilling, unable or ineligible to continue in its
capacity as Depository and a successor depositary is not appointed by
the Company within 60 days of the date the Company is so informed in
writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is
continuing with respect to the Securities of the same series. If any
beneficial owner of an interest in a permanent global Security is
entitled to exchange such interest for Securities of such series and
of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided
that any applicable notice provided in the permanent global Security
shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive
Securities in aggregate principal amount equal to the principal amount
of such beneficial owner's interest in such permanent global Security,
executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Depository or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each
portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities
of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301,
shall be in the form of Bearer Securities or Registered Securities, or
any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be
among those selected for redemption; and provided, further, that no
Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location
in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of
business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special
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Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be
payable on such Interest Payment Date or proposed date payment, as the
case may be, only to the Person to whom interest in respect of such
portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the
Security Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or
1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for
redemption of Securities of that series under Section 1103 or 1203 and
ending at the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the date of the mailing of the
relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the date of the first publication of
the relevant notice of redemption or, if Securities of the series are
also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security
may be exchanged for a Registered Security of that series and like
tenor; provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of
or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security
not to be so repaid.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any,
appertaining to the surrendered Security, or, in case any such
mutilated Security or Coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new
Security, with Coupons corresponding to the Coupons, if any,
appertaining to the surrendered Security, pay such Security or Coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security or Coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee
that such Security or Coupon has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen Coupon appertains (with all appurtenant
Coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen
Coupon appertains, or, in case any such destroyed, lost or stolen
Security or Coupon has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Security,
with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen Coupon appertains, pay such Security or
Coupon.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series with its Coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or
stolen Coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its Coupons, if any, or the destroyed,
lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and
their Coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
- 32 -
replacement or payment of mutilated, destroyed, lost or stolen
Securities or Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Company's option be paid by mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 310, to the address of such Person as it appears
on the Security Register; provided, further, however, that a Holder of
$10,000,000 or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled
to receive interest payments on such Interest Payment Date by wire
transfer of immediately available funds to an account in the United
States if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date, and any such wire transfer instructions
received by the Trustee shall remain in effect until revoked by such
Holder.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer
Security is surrendered in exchange for a Registered Security after
the close of business at an office or agency for such Security on any
Regular Record Date therefor and before the opening of business at
such office or agency on the next succeeding Interest Payment Date
therefor, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date and interest shall not be
payable on such Interest Payment Date in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such defaulted interest and, if applicable, interest
on such defaulted interest (to the extent lawful) at the rate
specified in the Securities of such series (such defaulted interest
and, if applicable, interest thereon herein collectively called
"Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an
amount of money in the Currency in which the Securities
of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of
such series 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 on or prior to the date of the proposed
payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor
to be given in the manner provided in Section 106, 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 given, such Defaulted Interest shall be paid to
the Persons in whose name the Registered Securities of
such series (or their respective Predecessor
Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or
agency for such Security in exchange for a Registered
Security of such series after the close of business at
such office or agency on any Special Record Date and
before the opening of business at such office or agency
on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered
without the Coupon relating to such proposed date of
payment and Defaulted Interest shall not be payable on
such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of
such Coupon when due in accordance with the provisions
of this Indenture.
- 34 -
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed
practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable
to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The interest rate
(or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series
may be reset by the Company on the date or dates specified
on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect
to such Security by notifying the Trustee of such exercise
at least 55 but not more than 60 days prior to an Optional
Reset Date for such Note. Not later than 40 days prior to
each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any
such Security a notice (the "Reset Notice") indicating
whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new
interest rate (or such new spread or spread multiplier, if
applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next
Optional Reset Date or if there is no such next Optional
Reset Date, to the Stated Maturity Date of such Security
(each such period a "Subsequent Interest Period"), including
the date or dates on which or the period or periods during
which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) provided for in the Reset Notice
and establish an interest rate (or a spread or spread multiplier used
to calculate such interest rate, if applicable) that is higher than
the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in
Section 106, notice of such higher interest rate (or such higher
spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with
respect to which the interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have
validly revoked any such tender) pursuant to the next succeeding
- 35 -
paragraph, will bear such higher interest rate (or such higher spread
or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount thereof
plus interest accrued to such Optional Reset Date. In order to obtain
repayment on an Optional Reset Date, the Holder must follow the
procedures set forth in Article Thirteen for repayment at the option
of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such
Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may,
by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional
Reset Date.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any, on) and
(subject to Sections 305 and 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any Coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and
the bearer of any Coupon as the absolute owner of such Security or
Coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such
Security or Coupons be overdue, and none of the Company, the Trustee
or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any
depositary, as a Holder, with respect to such global Security or
impair, as between such depositary and owners of beneficial interests
in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
- 36 -
SECTION 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities and Coupons so delivered to
the Trustee shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has
not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee
for cancellation. No Securities shall be authenticated in lieu of or
in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and certification of their
disposal delivered to the Company unless by Company Order the Company
shall direct that cancelled Securities be returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve
30-day months.
SECTION 311. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any
series in which not all of such Securities are denominated in the same
Currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of
any particular series, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in
a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
- 37 -
SECTION 312. Appointment and Resignation of Successor Exchange Rate
Agent.
(a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required
under any other provision of this Indenture, then the
Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to
make the necessary foreign exchange determinations at the
time and in the manner specified pursuant to Section 301.
Subject to Section 312(b) below, any Exchange Rate Agent may
be removed at any time without cause by the Company.
(b) No resignation, or removal, of the Exchange Rate Agent and
no appointment of a successor Exchange Rate Agent pursuant
to this Section shall become effective until the acceptance
of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company
and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in
the office of the Exchange Rate Agent for any cause with
respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange
Rate Agents with respect to the Securities of that or those
series (it being understood that any such successor Exchange
Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless
otherwise specified pursuant to Section 301, at any time
there shall only be one Exchange Rate Agent with respect to
the Securities of any particular series that are originally
issued by the Company on the same date and that are
initially denominated and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly
provided for and the obligation of the Company to pay any Additional
Amounts as contemplated by Section 1005) and the Trustee, at the
- 38 -
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all Coupons, if any, appertaining
thereto(other than (i) Coupons appertaining to Bearer
Securities surrendered in exchange for Registered
Securities and maturing after such exchange, whose
surrender is not required or has been waived as
provided in Section 305, (ii) Securities and Coupons of
such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in
Section 306, (iii) Coupons appertaining to Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has
theretofore been deposited in trust with the Trustee or
any Paying Agent or segregated and held in trust by the
Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for
such purpose an amount in the Currency in which the
Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein
provided for relating to the satisfaction and
discharge of this Indenture as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the
obligations of the Trustee to any Authenticating Agent under Section
611 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the Coupons and this Indenture, to the payment either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series, or any related Coupon, when such interest or
Coupon becomes due and payable, and continuance of such
default for a period of 60 days; provided that a valid
extension of the interest payment period by the Company in
accordance with the terms of any supplemental indenture
hereto shall not constitute a default in the payment of
interest or such Coupon for this purpose; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity;
provided that a valid extension of such Maturity pursuant to
the terms of any supplemental indenture hereto shall not
constitute a default in the payment of principal (or
premium) for this purpose; or
- 40 -
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of the Securities of that series and
Article 12; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture or the Securities
of that series which affects or is applicable to the
Securities of that series (other than a default in the
performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in this Section or which
has expressly been included in this Indenture solely for the
benefit of one or more series of Securities other than that
series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under the
Federal Bankruptcy Code or any similar state law, or
appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or
of any substantial part of the consolidated property of the
Company, or ordering the winding up or liquidation of the
Company's affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive
days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the written consent
by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the
Company of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code
or any similar state law, or the written consent by the
Company to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or
of any substantial part of the consolidated property of the
Company, or the making by the Company of an assignment for
the benefit of creditors, or the admission by the Company in
writing of its inability to pay its debts generally as they
become due; or
(7) an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which
there may be evidenced, any indebtedness of the Company for
money borrowed, whether such indebtedness now exists or
shall hereafter be created, shall happen and shall result in
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such indebtedness in principal amount in excess of
$15,000,000 becoming or being declared due and payable prior
to the date on which it would otherwise become due and
payable, and such acceleration shall not be rescinded or
annulled, or such indebtedness shall not have been
discharged, within a period of 30 days after there shall
have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of all
Outstanding Securities of that series, a written notice
specifying such event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or to
cause such indebtedness to be discharged and stating that
such notice is a "Notice of Default" hereunder; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing (other than an Event of
Default specified in Section 501(5) and (6)), then in every such case
the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of
all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such amount shall
become immediately due and payable. If an Event of Default specified
in Section 501(5) or (6) with respect to the Securities of any series
at the time Outstanding occurs and is continuing, then in every such
case the principal amount (or, if the Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion
of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series shall become and be
immediately due and payable without any declaration or other action on
the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter provided in this
Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series (or of all series, as the case
may be), by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of
such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series,
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(A) all overdue interest on all Outstanding Securities of
that series (or of all series, as the case may be) and
any related Coupons,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all
series, as the case may be) which has become due
otherwise than by such declaration of acceleration, and
interest on such unpaid principal at the rate or rates
prescribed therefor in such Securities,
(C) to the extent lawful, interest on 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, disbursements
and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than
the non-payment of amounts of principal of (or premium, if
any, on) or interest on Securities of that series (or of all
series, as the case may be) which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security and any related Coupon when such
interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee
for the benefit of the Holders of all Securities which are of the same
series as such Security and related Coupons, the whole amount then due
and payable on such Securities and Coupons for principal (and premium,
if any) and interest, and interest on any overdue principal (and
premium, if any) and, to the extent lawful, on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) 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 (or of all
series, as the case may be) by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or such Securities or in aid of the
exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities
or Indexed Securities as may be specified in the terms of
such series, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
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and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
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 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and Coupons
in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities or Coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 606;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on
the Securities and Coupons in respect of which or for
the benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such
Securities and Coupons for principal (and premium, if
any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related Coupons shall
have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series or shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities (including the fees and expenses of its counsel)
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other Holder of
Securities of any other series or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all Holders of Securities of
the same series.
SECTION 508. 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, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal
of (and premium, if any, on) and (subject to Section 307) interest on,
such Security or payment of such Coupon on the respective Stated
Maturities expressed in such Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders of Securities and Coupons shall be
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restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons
in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the
Holders 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 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of
such 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 and any Coupons appertaining thereto,
provided that in each case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the
Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any
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past default with respect to such series and its consequences, except
a default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security of such series or
any related Coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, any 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 Event of Default or impair any
right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of
such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case
of a Default in the payment of the principal of (or premium, if any,
on) or interest on any Security of such series or in the payment of
any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if
and so long as one or more Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest
of the Holders of Securities of such series and any related Coupons;
and provided, further, that in the case of any Default of the
character specified in Section 501(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least
30 days after the occurrence thereof. The Trustee shall not be
charged with knowledge of an Event of Default unless a Responsible
Officer of the Trustee obtains actual knowledge of such event.
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SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) 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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may request and, in the
absence of bad faith on its part, shall be entitled to rely
upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of
any series or any related Coupons pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part
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of (or for the supervision of) any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture. The Trustee
shall not be required 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; and
(9) the Trustee undertakes to perform only such duties as are
specifically set forth in this Indenture and no implied
duties shall be read into this Indenture against the
Trustee.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any Coupons shall be
taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or Coupons,
except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder and that the statements made by it
in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and Coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
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SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or willful misconduct; and
(3) to indemnify the Trustee and its directors, officers, agents
and employees for, and to hold each of them harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the
trust or trusts hereunder, 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; provided, however, that:
(i) while maintaining absolute control over its own defense,
the Trustee shall cooperate and consult with the Company in
preparing such defense; and (ii) while maintaining absolute
control over its rights to the settlement of any claim, the
Trustee shall consult with the Company with regard to any
such settlement.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the Company, the Trustee shall have
a claim prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
payment of principal of (and premium, if any, on) or interest on
particular Securities or any Coupons.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have
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 Federal, State, territorial or
District of Columbia 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
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set forth in its most recent report of condition so published. 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 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 609 shall not have
been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less
than a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it by the provisions of TIA Section 310(b)
with respect to Securities of any series after written
request therefor by the Company or by any Holder of a
Security of such series who has been a bona fide Holder
of a Security of such series for at least six months,
or
(2) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant
to a Board Resolution, may remove the Trustee with
respect to all Securities or the Securities of such
series, or (ii) subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of
himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series
and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one
or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any
particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor trustee with
respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the Securities of any series to the Holders of
Securities of such series in the manner provided for in
Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such
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successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on
request of the Company 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. Whenever there is a successor
Trustee with respect to one or more (but less than all)
series of securities issued pursuant to this Indenture, the
terms "Indenture" and "Securities" shall have the meanings
specified in the provisos to the respective definitions of
those terms in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor
Trustee all rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
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(d) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such
successor Person shall be qualified and eligible under this
Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series and the
Trustee shall give written notice of such appointment to all Holders
of Securities of the series with respect to which such Authenticating
Agent will serve, in the manner provided for in Section 106.
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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly
furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or
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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 corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of 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 and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall give written notice
of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank (National
Association), as Trustee
By:____________________________________
Authenticating Agent
By:____________________________________
Authorized Officer
SECTION 612. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company
or the Trustee or any agent of either of them 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 TIA Section
312, 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 TIA Section
312(b). The Trustee shall comply with all obligations imposed upon it
pursuant to TIA Section 312.
SECTION 702. Reports by Trustee.
Within 60 days after September 15 of each year commencing with the
first September 15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall transmit to the Holders of
Securities, in the manner and to the extent provided in TIA Section
313(c), a brief report dated as of such September 15 if required by
TIA Section 313. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when the
Securities are listed on any stock exchange.
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SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall
file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease all or substantially all of the property
and assets of the Company and its Subsidiaries on a consolidated basis
to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company and its Subsidiaries on a consolidated
basis (A) shall be a corporation, limited liability company,
partnership or trust organized and validly existing under
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the laws of the United States of America, any state thereof
or the District of Columbia and (B) shall expressly assume,
by an indenture supplemental hereto, executed by the
successor Person and delivered to the Trustee, in form
satisfactory to the Trustee, the Company's obligation for
the due and punctual payment of the principal of (and
premium, if any, on) and interest on all the Securities and
the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(3) the Company or such successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction
have been complied with.
This Section shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances,
leases and transfers by the Company as transferor or lessor.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company and its Subsidiaries on a
consolidated basis to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as
the "Company" in the first paragraph of this Indenture or any
successor Person which shall theretofore become such in the manner
described in Section 801), except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture and
the Securities and the Coupons and may be dissolved and liquidated.
SECTION 803. Assignment of Rights.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or
indirect wholly-owned Subsidiary of the Company; provided, that in the
event of any such assignment, the Company will remain liable for all
of its respective obligations. Subject to Section 609, the foregoing
provisions of this Section 803, and Section 802, this Indenture may
not otherwise be assigned by the parties hereto. This Indenture will
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be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any
related Coupons (and if such covenants are to be for the
benefit of less than all series of Securities, stating that
such covenants are being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are being
included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided
that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any
related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as contemplated by Sections 201 and 301; or
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(8) 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 609(b); or
(9) to close this Indenture with respect to the authentication
and delivery of additional series of Securities, to cure any
ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other
provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
or to amend or supplement any provision contained herein or
in any supplemental indenture; provided such action shall
not adversely affect the interests of the Holders of
Securities of any series and any related Coupons in any
material respect; or
(10) 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 Sections 401, 1402 and 1403; 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.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affect such series of Securities 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 of such series affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security of such series, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay Additional
Amounts contemplated by Section 1005 (except as contemplated
by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue
Discount Security of such series that would be due and
payable upon acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or change the redemption provisions
of any Security of such series, or adversely affect any
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right of repayment at the option of any Holder of any
Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series
or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or Repayment Date, as the
case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental
indenture, for any waiver of compliance with certain
provisions of this Indenture which affect such series or
certain defaults applicable to such series hereunder and
their consequences provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting with
respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture
which affect such series cannot be modified or waived
without the consent of the Holder of each Outstanding
Security of such series.
Any such supplemental indenture adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of
such series, shall not affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting
forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities and any related Coupons that it will duly
and punctually pay the principal of (and premium, if any, on) and
interest on the Securities of that series in accordance with the terms
of the Securities, any Coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, any interest installments
due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature.
SECTION 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any
series of Securities an office or agency where Securities of such
series (but not Bearer Securities, except as otherwise provided below,
unless such Place of Payment is located outside the United States) 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 the Company in respect of the
Securities of such series relating thereto and this Indenture may be
served. If Securities of a series are issuable as Bearer Securities,
the Company shall maintain, subject to any laws or regulations
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applicable thereto, an office or agency in a Place of Payment for such
series which is located outside the United States where Securities of
such series and any Coupons appertaining thereto may be presented or
surrendered for payment and such notices to and demands upon the
Company in respect of the Securities of that series and this Indenture
may be served; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock
exchange shall so require, the Company shall maintain a Paying Agent
in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of such
series are listed on such exchange. The Company 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 Company 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 of the Trustee, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and
surrendered for payment at the place specified for the purpose with
respect to such Securities as provided in or pursuant to this
Indenture, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with
respect to Bearer Securities shall be made at any office or agency in
the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in
the United States; provided, however, that if amounts owing with
respect to any Bearer Securities shall be payable in Dollars, payment
of the principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate
Trust Office of the Trustee or any office or agency designated by the
Company in The City of New York, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts at
all offices outside the United States maintained for such purpose by
the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company
shall 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. Unless otherwise provided in or pursuant
to this Indenture, the Company hereby designates as the Place of
Payment for each series The City of New York, and initially appoints
the office or agency of the Corporate Trust Office of the Trustee for
such purpose. Pursuant to Section 301(7) of this Indenture, the
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Company may subsequently appoint a place or places in addition to or
other than The City of New York where such Securities may be payable.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities and any related Coupons, it will,
on or before each due date of the principal of (and premium, if any,
on) 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 in
the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series 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 disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related Coupons, it will, prior to or on
each due date of the principal of (and premium, if any, on) or
interest on any Securities of that series, deposit with a Paying Agent
a sum (in the Currency described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) and interest on Securities of such
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this
Indenture;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the
making of any payment of principal of (or premium, if any,
on) or interest on the Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which sums were held by the Company or such Paying Agent; and, upon
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such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such
sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if
any, on) or interest on any Security of any series, or any Coupon
appertaining thereto, and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of
such Security or Coupon shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an
Authorized Newspaper in each Place of Payment for such series or to be
mailed to Holders of Registered Securities 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 publication
or mailing, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year and promptly following any request therefor
received by the Company from the Trustee, an Officer's Certificate
from the principal executive officer, treasurer, or principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 1004,
such compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture. The Company will
deliver to the Trustee, within 5 days after the occurrence thereof,
written notice of any event which after notice or lapse of time or
both would become an Event of Default pursuant to clause (4) of
Section 501.
SECTION 1005. Additional Amounts.
If any Securities of a series provide for the payment of additional
amounts to any Holder in respect of any tax, assessment or
governmental charge ("Additional Amounts"), the Company will pay to
the Holder of any Security of such series or any Coupon appertaining
thereto such Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of
any related Coupon or the net proceeds received on the sale or
exchange of any Security of a series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for by
the terms of such series established pursuant to Section 301 to the
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extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will
not bear interest prior to Maturity, the first day on which a payment
of principal (and premium, if any) is made), and at least 10 days
prior to each date of payment of principal (and premium, if any) or
interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether
such payment of principal of (and premium, if any, on) or interest on
the Securities of that series shall be made to Holders of Securities
of that series or any related Coupons who are not United States
Persons without withholding for or on account of any tax, assessment
or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities
of that series or related Coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. In the event that the Trustee or any Paying
Agent, as the case may be, shall not so receive the above-mentioned
certificate, then the Trustee or such Paying Agent shall be entitled
to (i) assume that no such withholding or deduction is required with
respect to any payment of principal (and premium, if any) or interest
with respect to any Securities of a series or related Coupons until it
shall have received a certificate advising otherwise and (ii) to make
all payments of principal (and premium, if any) and interest with
respect to the Securities of a series or related Coupons without
withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and
franchises of the Company; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as
a whole.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of the Securities of any
series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be
redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Securities to be
redeemed pursuant to Section 1103. In the case of any redemption of
Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions of the principal amount of Securities of such series;
provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less
than the minimum authorized denomination for Securities of such series
established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any 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.
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SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice
of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed. Failure to give notice
by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other Securities
or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date
payable as provided in Section 1106) will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to
be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption
must be accompanied by all Coupons maturing subsequent to
the Redemption Date or the amount of any such missing Coupon
or Coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such
Redemption Date pursuant to Section 305 or otherwise, the
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last date, as determined by the Company, on which such
exchanges may be made,
(9) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on
and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without
charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining
unredeemed, and
(10) the CUSIP number or the Euroclear or the CEDEL S.A.
reference numbers of such Securities, if any (or any other
numbers used by a depositary to identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the
Redemption Price of, and (except as otherwise provided as contemplated
by Section 301) accrued interest on, all the Securities which are to
be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together
with accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if
the same were interest-bearing, cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that (except as
otherwise provided as contemplated by Section 301) installments of
interest on Bearer Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
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Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of Coupons for such
interest, and provided, further, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption
Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing Coupons,
or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by Coupons
shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Coupons.
If any Security called for redemption or portion thereof 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 of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) set forth in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
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 mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (1) deliver to the
Trustee Outstanding Securities of such series (other than any
previously called for redemption) theretofore purchased or otherwise
acquired by the Company together in the case of any Bearer Securities
of such series with all unmatured Coupons appertaining thereto, and/or
(2) receive credit for the principal amount of Securities of such
series which have been previously delivered to the Trustee by the
Company or for Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of the same series required to
be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, however, 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 mandatory sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) and the portion thereof, if any, which
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is to be satisfied by delivering or crediting Securities of that
series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the
Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate
shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In
the case of the failure of the Company to deliver such certificate,
the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall
be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to
deliver or credit Securities as provided in Section 1202 and without
the right to make any optional sinking fund payment, if any, with
respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 1106 and
1107.
On or prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003)
in cash a sum equal to any interest that will accrue to the date fixed
for redemption of Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid
into such sinking fund on the next succeeding sinking fund payment
date, together with any unused balance of any preceding sinking fund
payment or payments for such series, does not exceed in the aggregate
$100,000, the Trustee, unless requested by the Company, shall not give
the next succeeding notice of the redemption of Securities of such
series through the operation of the sinking fund. Any such unused
balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the
Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase,
in the open market or otherwise, at a purchase price for such
Securities (excluding accrued interest and brokerage commissions,
which will be paid by the Company separately through the Trustee or
any Paying Agent) not in excess of the principal amount thereof.
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ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the
principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the
Repayment Date it will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (or, if so provided by the
terms of the Securities of any series, a percentage of the principal)
of, and (except if the Repayment Date shall be an Interest Payment
Date and unless otherwise specified as contemplated by Section 301)
accrued interest on, all the Securities or portions thereof, as the
case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on
the reverse of such Securities. To be repaid at the option of the
Holder, any Security so providing for such repayment, with the "Option
to Elect Repayment" form on the reverse of such Security duly
completed by the Holder (or by the Holder's attorney duly authorized
in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other
place or places or which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with
the terms of such Security, the principal amount of such Security to
be repaid, in increments of the minimum denomination for Securities of
such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal
amount of such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of
Securities of the series of which such Security to be repaid is a
part. Except as otherwise may be provided by the terms of any
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Security providing for repayment at the option of the Holder thereof,
exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case may
be, to be repaid shall become due and payable and shall be paid by the
Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of
such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the Coupons for
such interest appertaining to any Bearer Securities so to be repaid,
except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions,
together with all Coupons, if any, appertaining thereto maturing after
the Repayment Date, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued interest,
if any, to the Repayment Date; provided, however, that unless
otherwise specified as contemplated by Section 301: (a) Coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable
only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and only upon presentation and
surrender of those Coupons; and (b) in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is
on or prior to the Repayment Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according
to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant Coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the
face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee
or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made as provided in the preceding sentence,
such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by Coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those Coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the
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rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered
Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount
equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified pursuant to Section 301 for Securities
of any series the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402
or covenant defeasance of or within a series under Section 1403, in
each case in accordance with the terms of such Securities and in
accordance with this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities and any related Coupons on
the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any
related Coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this
Indenture referred to in (A) and (B) below, and to have satisfied all
its other obligations under such Securities and any related Coupons
and this Indenture insofar as such Securities and any related Coupons
are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities
and any related Coupons to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any, on) and
interest on such Securities and any related Coupons when such payments
are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1005, (C) the rights, powers, trusts, duties
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and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section 1402 notwithstanding the prior
exercise of its option under Section 1403 with respect to such
Securities and any related Coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the
Company shall be released, if specified pursuant to Section 301, from
its obligations under any covenant with respect to such Outstanding
Securities and any related Coupons on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any related Coupons
shall thereafter be deemed not to be "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that,
with respect to such Outstanding Securities and any related Coupons,
the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(4) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such
Securities and any related Coupons shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a
series and any related Coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply
with the provisions of this Article Fourteen applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such
Securities and any related Coupons, (A) an amount (in such
Currency in which such Securities and any related Coupons
are then specified as payable at Stated Maturity), or (B)
Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such
Securities are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
(without consideration of any reinvestment thereof) will
provide, not later than one day before the due date of any
payment of principal (including any premium) and interest,
if any, under such Securities and any related Coupons, money
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in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and
premium, if any, on) and interest on such Outstanding
Securities and any related Coupons on the Stated Maturity
(or Redemption Date, if applicable) of such principal (and
premium, if any) or installment or interest and (ii) any
mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any related
Coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and
of such Securities and any related Coupons; provided that
the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such Government Obligations to
said payments with respect to such Securities and any
related Coupons. Before such a deposit, the Company may
give to the Trustee, in accordance with Section 1102 hereof,
a notice of its election to redeem all or any portion of
such Outstanding Securities at a future date in accordance
with the terms of the Securities of such series and Article
Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities and any related Coupons shall have occurred and
be continuing on the date of such deposit or, insofar as
paragraphs (5) and (6) of Section 501 are concerned, at any
time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or
(y) since the date of execution of this Indenture, there has
been a change in the applicable United States federal income
tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any related Coupons will not
recognize income, gain or loss for United States federal
income tax purposes as a result of such defeasance and will
be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
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(5) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities
and any related Coupons will not recognize income, gain or
loss for United States federal income tax purposes as a
result of such covenant defeasance and will be subject to
United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms,
conditions or limitations in connection therewith pursuant
to Section 301.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the
defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied
with.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively for
purposes of this Section 1405, the "Trustee") pursuant to Section 1404
in respect of such Outstanding Securities and any related Coupons
shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any related Coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any related
Coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (a) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to the terms
of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 1404(1) has been made in respect
of such Security, or (b) a Conversion Event occurs or by the terms of
any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security
and any related Coupons shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of
(premium, if any, on), and interest, if any, on such Security as they
become due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount
or other property deposited in respect of such Security into the
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Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange
Rate for such Currency in effect on the third Business Day prior to
each payment date, except, with respect to a Conversion Event, for
such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of such
Outstanding Securities and any related Coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and such Securities and any related Coupons shall be
revived and reinstated as though no deposit had occurred pursuant to
Section 1402 or 1403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, however, that if the Company
makes any payment of principal of (or premium, if any, on) or interest
on any such Security and any related Coupon following the
reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Securities and any related Coupons
to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
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SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in The City of New York, or, if
Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such other place outside of the
United States as the Trustee shall determine. Notice of every meeting
of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided for in
Section 106, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in The City of New York, or, if Securities of such series
are to be issued as Bearer Securities, in London for such meeting and
may call such meeting for such purposes by giving notice thereof as
provided in paragraph (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Person entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however,
that, if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given
by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled
to vote such specified percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of
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Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, except
as limited by the proviso to Section 902, any resolution with respect
to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of not less than such specified
percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and
the related Coupons, whether or not present or represented at the
meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or taken
under this Indenture.
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SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $25 principal amount of
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in Section
101); provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series
or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series held or
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represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities
of any series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated January 28, 1995 included in Newell Co.'s Form 10-K for
the year ended December 31, 1994 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
November 14, 1995
