“ Board Resolution
” means a copy of a resolution or resolutions 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 ”
means, when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the
Securities, any day except a Saturday, Sunday or any other day on
which commercial banks in such Place of Payment or other location
are authorized or obligated by law or executive order to
close.
“ Capital Stock ”
means:
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(1)
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in the case of a corporation, corporate
stock;
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(2) in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests;
and
(4) any
other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person, but excluding from all of the
foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of
participation with Capital Stock.
“ Code ” means
the Internal Revenue Code of 1986 as in effect on the date
hereof.
“ Company ” means
the Person named as the “Company” in the recitals,
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 Order ”
means a written request or order signed in the name of the Company
by the Chairman of the Board of Directors, Chief Executive Officer,
Chief Financial Officer, President, Senior Executive Vice
President, Executive Vice President, Vice President, Treasurer,
Assistant Treasurer, Controller, Assistant Controller, Secretary or
Assistant Secretary of the Company, and delivered to the
Trustee.
“ Corporate Trust
Office ,” or other similar term, means the principal
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date
hereof is located at [_________], Attention: [_________], or such
other address as the Trustee may designate from time to time by
notice to the Holders and the Company, or the principal corporate
trust officer of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to
the Holders and the Company).
“ Currency ”
means U.S. Dollars or Foreign Currency.
“ Currency Determination
Agent ” has the meaning provided in Section
3.11(d).
“ Default ” has
the meaning provided in Section 11.03.
“ Defaulted Interest
” has the meaning provided in Section 3.08(b).
“ Depositary ”
means, with respect to the Securities of any series issuable in
whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section
3.01 until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter
“Depositary” shall mean or include each Person who is
then a Depositary hereunder, and if at any time there is more than
one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with
respect to the Securities of that series.
“ Designated Currency
” has the meaning provided in Section 3.11.
“ Discharged ”
has the meaning provided in Section 12.03.
“ Event of Default
” has the meaning provided in Section 7.01.
“ Exchange Act ”
means the Securities Exchange Act of 1934.
“ Exchange Rate ”
has the meaning provided in Section 3.11(d).
“ Floating Rate
Security ” means a Security that provides for the payment
of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section
3.01.
“ Foreign Currency
” means a currency issued by the government of any country
other than the United States or a composite currency, the value of
which is determined by reference to the values of the currencies of
any group of countries.
“ GAAP ” means,
with respect to any computation required or permitted hereunder,
shall mean (i) generally accepted accounting principles in effect
in the United States as in effect from time to time, including,
without limitation, those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a
significant segment of the accounting profession or (ii) such other
generally accepted accounting principles as the Company may in the
future adopt for purposes of financial statement
reporting.
“ Global Security
” means any Security that evidences all or part of a series
of Securities, issued in fully-registered certificated form to the
Depositary for such series in accordance with Section 3.03 and
bearing the legend prescribed in Section 3.03(g).
“ Government
Obligations ” means securities that are (i) direct
obligations of the United States 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 United
States the timely payment of which
is unconditionally guaranteed as a full faith and credit obligation
by the United States, that, in either case under clauses (i) or
(ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary 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 depositary 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 depositary
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depositary
receipt.
“ Holder ,”
“ Holder of Securities ,” “
Securityholder ” or other similar terms mean the
Person in whose name Securities shall be registered in the
Register.
“ Indebtedness ”
means any and all obligations of a Person for money borrowed which,
in accordance with GAAP, would be reflected on the balance sheet of
such Person as a liability on the date as of which Indebtedness is
to be determined.
“ Indenture ”
means this instrument and all indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as
contemplated by Section 3.01.
“ Interest Payment Date
” means, with respect to any Security, the Stated Maturity of
an installment of interest on such Security.
“ Mandatory Sinking Fund
Payment ” has the meaning provided in Section
5.01(b).
“ Maturity ”
means, with respect to any Security, the date on which the
principal of such Security shall become due and payable as therein
and herein provided, whether by declaration, call for redemption or
otherwise.
“ Members ” has
the meaning provided in Section 3.03(i).
“ Notice of Default
” has the meaning provided in Section 7.01(d).
“ Officer’s
Certificate ” means a certificate signed by any of the
Chairman of the Board of Directors, Chief Executive Officer,
President, Chief Financial Officer, Senior Executive Vice
President, Executive Vice President, Vice President, Treasurer,
Assistant Treasurer, Controller, Assistant Controller, Secretary or
Assistant Secretary of the Company, and delivered to the Trustee.
Each such certificate shall include the statements provided for in
Section 16.01 if and to the extent required by the provisions of
such Section.
“ Opinion of Counsel
” means an opinion in writing signed by legal counsel who may
be an employee of or counsel to the Company or who may be other
counsel, reasonably acceptable to the Trustee, that meets the
applicable requirements provided for in Section 16.01.
“ Optional Sinking Fund
Payment ” has the meaning provided in Section
5.01(b).
“ Original Issue Discount
Security ” means any Security that is issued with
“original issue discount” within the meaning of Section
1273(a) of the Code and the regulations thereunder and any other
Security designated by the Company as issued with original issue
discount for United States federal income tax purposes.
“ Outstanding ”
means, when used with respect to Securities, as of the date of
determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities
theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(2) Securities
or portions thereof for which payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities or Securities
as to which the Company’s obligations have been Discharged;
provided , however , that if such Securities or
portions thereof are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Securities
that have been paid pursuant to Section 3.07(b) 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 a
Responsible Officer of the Trustee proof satisfactory to it that
such Securities are held by a protected 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 Securities of a
series Outstanding have performed any action (including the making
of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) hereunder, Securities
owned by the Company or any other obligor upon the Securities of
such series or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding
unless the Company, such Affiliate or such other obligor owns all
of such Securities), except that, in determining whether the
Trustee shall be protected in relying upon any such action, only
Securities of such series that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities
so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon such Securities or any Affiliate of the Company or of
such other obligor. In case of a dispute as to such right, the
decision of the Trustee upon the advice of counsel shall be full
protection to the Trustee. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officer’s
Certificate listing and identifying all such Debt Securities, if
any, known by the Company to be owned or held by or for the account
of any of the above described Persons; and, subject to the
provisions of Section 11.01, the Trustee shall be entitled to
accept such Officer’s Certificate as conclusive evidence of
the facts therein set forth and of the fact that all such Debt
Securities not listed therein are Outstanding for the purpose of
any such determination. In determining whether the Holders
of
the requisite principal amount of
Outstanding Securities of a series have performed any action
hereunder, the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purpose
shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 7.02 and
the principal amount of a Security denominated in a Foreign
Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section
3.11(b).
“ Paying Agent ”
means any Person authorized by the Company to pay the principal of,
premium, if any, or interest on any Securities on behalf of the
Company. The Company may act as Paying Agent with respect to
Securities of any series issued hereunder.
“ Person ” shall
mean an individual, a corporation, a limited liability company, a
partnership, an association, a joint stock company, a trust, an
unincorporated organization or a government or an agency or
political subdivision thereof.
“ Place of Payment
” has the meaning provided in Section 3.01(h).
“ Predecessor Security
” means, with respect to any Security, every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security, and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.07 in lieu of a lost, destroyed or stolen Security shall
be deemed to evidence the same debt as the lost, destroyed or
stolen Security.
“ Record Date ”
means, with respect to any interest payable on any Security on any
Interest Payment Date, the close of business on such date specified
in such Security for the payment of interest pursuant to Section
3.01.
“ Redemption Date
” means, when used with respect to any Security to be
redeemed, in whole or in part, the date fixed for such redemption
by or pursuant to this Indenture and the terms of such Security,
which, in the case of a Floating Rate Security, unless otherwise
specified pursuant to Section 3.01, shall be an Interest Payment
Date only.
“ Redemption Price
” means, when used with respect to any Security to be
redeemed, in whole or in part, the price at which it is to be
redeemed pursuant to the terms of the Security and this
Indenture.
“ Register ” has
the meaning provided in Section 3.05(a).
“ Registrar ” has
the meaning provided in Section 3.05(a).
“ Responsible Officer
” means, with respect to the Trustee, any officer assigned to
the [____________] unit (or any successor division or unit) of the
Trustee located at the Corporate Trust Office of the Trustee, who
shall have direct responsibility for the administration of this
Indenture, and for purposes of Section 11.02(b)(ii) and Section
11.03 shall also include any other officer of the Trustee to whom
any corporate trust matter is referred because of such
officer’s knowledge of and familiarity with the particular
subject.
“ SEC ” means the
Securities and Exchange Commission, as constituted from time to
time.
“ Securities Act
” means the Securities Act of 1933.
“ Security ” or
“ Securities ” means any Security or Securities,
as the case may be, duly authenticated by the Trustee and delivered
under this Indenture.
“ Security Custodian
” means the custodian with respect to any Global Security
appointed by the Depositary, or any successor Person thereto, and
shall initially be the Paying Agent.
“ Senior Indebtedness
” means the principal of, premium, if any, or interest on (x)
Indebtedness of the Company, whether outstanding on the date hereof
or thereafter created, incurred, assumed or guaranteed, for money
borrowed other than (a) any Indebtedness of the Company which when
incurred, and without respect to any election under Section 1111(b)
of the Bankruptcy Code, was without recourse to the Company, (b)
any Indebtedness of the Company to any of its Subsidiaries, (c)
Indebtedness to any employee of the Company, (d) any liability for
taxes, (e) Trade Payables and (f) any Indebtedness of the Company
which is expressly subordinate in right of payment to any other
Indebtedness of the Company, and (y) renewals, extensions,
modifications and refundings of any such Indebtedness. For purposes
of the foregoing and the definition of “Senior
Indebtedness,” the phrase “subordinated in right of
payment” means debt subordination only and not lien
subordination, and accordingly, (i) unsecured indebtedness shall
not be deemed to be subordinated in right of payment to secured
indebtedness merely by virtue of the fact that it is unsecured, and
(ii) junior liens, second liens and other contractual arrangements
that provide for priorities among Holders of the same or different
issues of indebtedness with respect to any collateral or the
proceeds of collateral shall not constitute subordination in right
of payment. This definition may be modified or superseded by a
supplemental indenture.
“ Special Record Date
” has the meaning provided in Section 3.08(b)(i).
“ Stated Maturity
” means, when used with respect to any Security or any
installment of interest thereon, the date specified in such
Security as the fixed date on which the principal (or any portion
thereof) of or premium, if any, on such Security or such
installment of interest is due and payable.
“ Subsidiary ”
means, when used with respect to any Person:
(1) any
corporation, limited liability company, association or other
business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence
of any contingency and after giving effect to any voting agreement
or stockholders’ agreement that effectively transfers voting
power) to vote in the election of directors, managers or trustees
of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any
partnership (i) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or
(ii) the only general partners of which are that Person or one or
more Subsidiaries of that Person (or any combination
thereof).
“ Successor Company
” has the meaning provided in Section 3.06(i).
“ Trade Payables
” means accounts payable or any other Indebtedness or
monetary obligations to trade creditors created or assumed by the
Company or any Subsidiary of the Company in the ordinary course of
business (including guarantees thereof or instruments evidencing
such liabilities).
“ Trust Indenture Act
” or “ TIA ” means the Trust Indenture Act
of 1939.
“ 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, and if at any time there is more
than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to
Securities of that series.
“ U.S. Dollars ”
or “ $ ”means such currency of the United States
as at the time of payment shall be legal tender for the payment of
public and private debts.
“ United States ”
shall mean the United States of America (including the States and
the District of Columbia), its territories and its possessions and
other areas subject to its jurisdiction.
Section 1.02
Rules of Construction . For all purposes of this Indenture,
except as otherwise expressly provided or unless the context
otherwise requires:
(a) 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;
(b) references
to “Article” or “Section” or other
subdivision herein are references to an Article, Section or other
subdivision of the Indenture, unless the context otherwise
requires; and
(c) references
to any agreement, instrument or statute defined or referred to
herein or in any instrument establishing the terms of any
Securities (or executed in connection therewith) are references to
such agreement, instrument or statute as from time to time amended,
modified, supplemented or replaced, including (in the case of
agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor agreements,
instruments or statutes.
ARTICLE II
FORMS OF
SECURITIES
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Section 2.01
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Form Generally .
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(a) The
Securities of each series shall be substantially in the form set
forth in Exhibit A attached hereto or as shall be established
pursuant to a Company Order or in one or more indentures
supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which any series of the Securities may
be listed or of any automated quotation system on which any such
series may be quoted, or to conform to usage, all as determined by
the officers executing such Securities as conclusively evidenced by
their execution of such Securities.
(b) The
terms and provisions of the Securities shall constitute, and are
hereby expressly made, a part of this Indenture, and, to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.
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Section 2.02
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Form of Trustee’s Certificate of
Authentication .
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(a) Only
such of the Securities as shall bear thereon a certificate
substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by
manual signature, shall be valid or become obligatory for any
purpose or entitle the Holder thereof to any right or benefit under
this Indenture.
(b) Each
Security shall be dated the date of its authentication, except as
otherwise specified as contemplated in Section 3.01.
(c) The
form of the Trustee’s certificate of authentication to be
borne by the Securities shall be substantially as
follows:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated therein referred to in the within-mentioned
Indenture.
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Date of authentication: ___________
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[NAME OF TRUSTEE],
as Trustee
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By: ___________________________
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Authorized Signatory
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Section 2.03
Form of Trustee’s Certificate of Authentication by an
Authenticating Agent . If at any time there shall be an
Authenticating Agent appointed with respect to any series of
Securities, then the Trustee’s certificate of authentication
by such Authenticating Agent to be borne by Securities of each such
series shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities issued
referred to in the within-mentioned Indenture.
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Date of authentication: ___________
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[NAME OF TRUSTEE],
as Trustee
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By: [NAME OF AUTHENTICATING
AGENT]
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as Authenticating Agent
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By: _______________________________
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Authorized Signatory
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ARTICLE III
THE DEBT
SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series . The aggregate
principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be
issued from time to time in one or more series. There shall be set
forth in a Company Order or in one or more indentures supplemental
hereto, prior to the issuance of Securities of any
series:
(a) the
title of the Securities of the series (which shall distinguish the
Securities of such series from the Securities of all other series,
except to the extent that additional Securities of an existing
series are being issued);
(b) 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 transfer
of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 3.04, 3.06, 3.07, 4.06, or
14.05);
(c) the
dates on which or periods during which the Securities of the series
may be issued, and the dates on, or the range of dates within,
which the principal of and premium, if any, on the Securities of
such series are or may be payable or the method by which such date
or dates shall be determined or extended;
(d) 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 any such interest
shall be payable, and the Record Dates for the determination of
Holders to whom interest is payable on such Interest Payment Dates
or the method by which such date or dates shall be determined, the
right, if any, to extend or defer interest payments and the
duration of such extension or deferral;
(e) if
other than U.S. Dollars, the Currency in which Securities of the
series shall be denominated or in which payment of the principal
of, premium, if any, or interest on the Securities of the series
shall be payable and any other terms applicable thereto;
(f) if
the amount of payment of principal of, premium, if any, or interest
on, the Securities of the series may be determined with reference
to an index, formula or other method including, but not limited to,
an index based on a Currency or Currencies other than that in which
the Securities are stated to be payable, the manner in which such
amounts shall be determined;
(g) if
the principal of, premium, if any, or interest on, 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 the
Securities are denominated or stated to be payable without such
election, the period or periods within which, and the terms and
conditions upon which, such election may be made and the time and
the manner of determining the Exchange Rate (in addition to or in
lieu of the provision set forth in Section 3.11) between the
Currency in which the Securities are denominated or payable without
such election and the Currency in which the Securities are to be
paid if such election is made;
(h) the
place or places, if any, in addition to or instead of the Corporate
Trust Office of the Trustee where the principal of, premium, if
any, and interest on Securities of the series shall be payable, and
where Securities of any series may be presented for registration of
transfer, exchange or conversion, and the place or places where
notices and demands to or upon the Company in respect of the
Securities of such series may be made (each such place, the “
Place of Payment ”);
(i) the
price or prices at which, the period or periods within which or the
date or dates on which, and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that
option;
(j) the
obligation or right, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund,
amortization or analogous provisions or at the option of a Holder
thereof and the price or prices at which, the period or periods
within which or the date or dates on which, the Currency or
Currencies in which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(k) if
other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall
be issuable;
(l) if
other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 7.02;
(m) whether
the Securities of the series are to be issued as Original Issue
Discount Securities and the amount of discount with which such
Securities may be issued;
(n) provisions,
if any, for the defeasance of Securities of the series in whole or
in part and any addition or change in the provisions related to
satisfaction and discharge;
(o) whether
the Securities of the series are to be issued in whole or in part
in the form of one or more Global Securities and, in such case, (i)
the Depositary for such Global Security or Securities, (ii) the
form of legend in addition to or in lieu of that in Section 3.03(g)
which shall be borne by such Global Security and (iii) the terms
and conditions, if any, upon which interests in such Global
Security or Securities may be exchanged in whole or in part for the
individual Securities represented thereby;
(p) the
date as of which any Global Security of the series shall be dated
if other than the original issuance of the first Security of the
series to be issued;
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(q)
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the form of the Securities of the
series;
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(r) if
the Securities of the series are to be convertible into or
exchangeable for any securities or property of any Person
(including the Company), the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any
additions or changes, if any, to permit or facilitate such
conversion or exchange;
(s) whether
the Securities of such series are subject to subordination and the
terms of such subordination;
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(t)
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whether the Securities of such series shall be
secured;
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(u) any
restriction or condition on the transferability of the Securities
of such series;
(v) any
addition or change in the provisions related to compensation and
reimbursement of the Trustee which applies to Securities of such
series;
(w) any
addition or change in the provisions related to supplemental
indentures set forth in Sections 14.02 and 14.04 which applies to
Securities of such series;
(x) provisions,
if any, granting special rights to Holders upon the occurrence of
specified events;
(y) any
addition to or change in the Events of Default which applies to any
Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 7.02
and any addition or change in the provisions set forth in Article
VII which applies to Securities of the series;
(z) any
addition to or change in the covenants set forth in Article VI
which applies to Securities of the series; and
(aa) any other
terms of the Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 14.01, but which may modify or delete any
provision of this Indenture insofar as it applies to such series),
including any terms which may be required by or advisable under the
laws of the United States or regulations thereunder or advisable
(as determined by the Company) in connection with the marketing of
Securities of the series.
All Securities of any one series
shall be substantially identical, except as to denomination and
except as may otherwise be provided herein or set forth in a
Company Order or in one or more indentures supplemental
hereto.
Section 3.02
Denominations . In the absence of any specification pursuant
to Section 3.01 with respect to Securities of any series, the
Securities of such series shall be issuable only as Securities in
denominations of any integral multiple of $1,000, and shall be
payable only in U.S. Dollars.
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Section 3.03
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Execution, Authentication, Delivery and
Dating .
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(a) The
Securities shall be executed in the name and on behalf of the
Company by its Chairman of the Board of Directors, its Chief
Executive Officer, President, Chief Financial Officer, Senior
Executive Vice President, Executive Vice President, Vice President
or Treasurer. Such signatures may be the manual or facsimile
signatures of the present or any future such officer. If the Person
whose signature is on a Security no longer holds that office at the
time the Security is authenticated and delivered, the Security
shall nevertheless be valid.
(b) At
any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities and, if required pursuant to Section 3.01, a
supplemental indenture or Company Order setting forth the terms of
the Securities of a series. The Trustee shall thereupon
authenticate and deliver such Securities without any further action
by the Company. The Company Order shall specify the principal
amount of Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated.
(c) In
authenticating the first Securities of any series and accepting the
additional responsibilities under this Indenture in relation to
such Securities the Trustee shall receive, and (subject to Section
11.02) shall be fully protected in relying upon an Officer’s
Certificate and an Opinion of Counsel, each prepared in accordance
with Section 16.01 stating that the conditions precedent, if any,
provided for in the Indenture have been complied with.
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(d) The
Trustee shall have the right to decline to authenticate and deliver
the Securities under this Section 3.03 if the issue of the
Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise.
(e) Each
Security shall be dated the date of its authentication, except as
otherwise provided pursuant to Section 3.01 with respect to the
Securities of such series.
(f) Notwithstanding
the provisions of Section 3.01 and of this Section 3.03, if all of
the Securities of any series are not to be originally issued at the
same time, then the documents required to be delivered pursuant to
this Section 3.03 may be delivered only once prior to the
authentication and delivery of the first Security of such
series;
(g) If
the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall
execute and the Trustee shall authenticate and deliver one or more
Global Securities that (i) shall represent an aggregate amount
equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by such Global
Securities, (ii) shall be registered, if in registered form, in the
name of the Depositary for such Global Security or Securities or
the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary’s
instruction and (iv) shall bear a legend substantially to the
following effect:
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
The aggregate principal amount of
each Global Security may from time to time be increased or
decreased by adjustments made on the records of the Security
Custodian, as provided in this Indenture.
(h) Each
Depositary designated pursuant to Section 3.01 for a Global
Security in registered form must, at the time of its designation
and at all times while it serves as such Depositary, be a clearing
agency registered under the Exchange Act and any other applicable
statute or regulation.
(i) Members
of, or participants in, the Depositary (“ Members
”) shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary or by
the Security Custodian under such Global Security, and the
Depositary may be treated by the Company, the Trustee, the Paying
Agent and the Registrar and any of their agents as the absolute
owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, the Paying Agent or the
Registrar or any of their agents
from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Members, the operation of customary practices of
the Depositary governing the exercise of the rights of an owner of
a beneficial interest in any Global Security. The Holder of a
Global Security may grant proxies and otherwise authorize any
Person, including Members and Persons that may hold interests
through Members, to take any action that a Holder is entitled to
take under this Indenture or the Securities.
(j) No
Security 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 one of
the forms provided for herein duly executed by the Trustee or by an
Authenticating Agent by manual signature of an authorized signatory
of the Trustee, 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.
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Section 3.04
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Temporary Securities .
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(a) 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 that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
temporary Securities may determine, as conclusively evidenced by
their execution of such temporary Securities. Any such temporary
Security may be in global form, representing all or a portion of
the Outstanding Securities of such series. Every such temporary
Security shall be executed by the Company and shall be
authenticated and delivered by the Trustee upon the same conditions
and in substantially the same manner, and with the same effect, as
the definitive Security or Securities in lieu of which it is
issued.
(b) If
temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of such temporary Securities at the office or agency
maintained by the Company in a Place of Payment for such purposes
provided in Section 6.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities
of any series, 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 and of like tenor. 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.
(c) Upon
any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Securities
represented thereby pursuant to this Section 3.04 or Section 3.06,
the temporary Global Security shall be endorsed by the Trustee to
reflect the reduction of the principal amount evidenced thereby,
whereupon the principal amount of such temporary Global Security
shall be reduced for all purposes by the amount so exchanged and
endorsed.
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Section 3.05
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Registrar and Paying Agent
.
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(a) The
Company will keep, at an office or agency to be maintained by it in
a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of
transfer or of exchange, and where Securities of any series that
are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable (the “ Registrar ”),
a security register for the registration and the registration of
transfer or of exchange of the Securities (the registers maintained
in such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to
as the “ Register ”), as in this Indenture
provided, which Register shall at all reasonable times be open for
inspection by the Trustee. Such Register shall be in written form
or in any other form capable of being converted into written form
within a reasonable time. The Company may have one or more
co-Registrars; the term “Registrar” includes any
co-registrar.
(b) The
Company shall enter into an appropriate agency agreement with any
Registrar or co-Registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the
name and address of each such agent. If the Company fails to
maintain a Registrar for any series, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant
to Section 11.01. The Company or any Affiliate thereof may act as
Registrar, co-Registrar or transfer agent.
(c) The
Company hereby appoints the Trustee at its Corporate Trust Office
as Registrar in connection with the Securities and this Indenture,
until such time as another Person is appointed as such in
replacement of the Trustee as such. No Person shall at any time be
appointed as or act as Registrar unless such Person is at such time
empowered under applicable law to act as such Registrar.
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Section 3.06
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Transfer and Exchange .
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(i) Upon
surrender for registration of transfer of any Security of any
series at the Registrar, the Company shall execute, and the Trustee
or any Authenticating Agent shall authenticate and deliver, in the
name of the designated transferee, one or more new Securities of
the same series for like aggregate principal amount of any
authorized denomination or denominations. The transfer of any
Security shall not be valid as against the Company or the Trustee
unless registered at the Registrar at the request of the Holder, or
at the request of his, her or its attorney duly authorized in
writing.
(ii) Notwithstanding
any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Securities
represented thereby,
a Global Security representing all
or a portion of the Securities of a series may not be transferred
except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
(i) At
the option of the Holder, Securities of any series (other than a
Global Security, except as set forth below) may be exchanged for
other Securities of the same series for like aggregate principal
amount of any authorized denomination or denominations, upon
surrender of the Securities to be exchanged at the
Registrar.
(ii) Whenever
any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to
receive.
(c)
Exchange of Global Securities for Individual Securities .
Except as provided below, owners of beneficial interests in Global
Securities will not be entitled to receive individual
Securities.
(i) Individual
Securities shall be issued to all owners of beneficial interests in
a Global Security in exchange for such interests if: (A) at any
time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary
for the Securities of such series shall no longer be eligible under
Section 3.03(h) and, in each case, a successor Depositary is not
appointed by the Company within 90 days of such notice, or (B) the
Company executes and delivers to the Trustee and the Registrar an
Officer’s Certificate stating that such Global Security shall
be so exchangeable.
In connection with the exchange of
an entire Global Security for individual Securities pursuant to
this subsection (c), such Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such
series, will authenticate and deliver to each beneficial owner
identified by the Depositary in exchange for its beneficial
interest in such Global Security, an equal aggregate principal
amount of individual Securities of authorized
denominations.
(ii) The
owner of a beneficial interest in a Global Security will be
entitled to receive an individual Security in exchange for such
interest if an Event of Default has occurred and is continuing.
Upon receipt by the Security Custodian and Registrar of
instructions from the Holder of a Global Security directing the
Security Custodian and Registrar to (x) issue one or more
individual Securities in the amounts specified to the owner of a
beneficial interest in such Global Security and (y) debit or cause
to be debited an equivalent amount of beneficial interest in such
Global Security, subject to the rules and regulations of the
Depositary:
(A) the
Security Custodian and Registrar shall notify the Company and the
Trustee of such instructions, identifying the owner and amount of
such beneficial interest in such Global Security;
(B) the
Company shall promptly execute and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual
Securities of such series, shall authenticate and deliver to such
beneficial owner individual Securities in an equivalent amount to
such beneficial interest in such Global Security; and
(C) the
Security Custodian and Registrar shall decrease such Global
Security by such amount in accordance with the foregoing. In the
event that the individual Securities are not issued to each such
beneficial owner promptly after the Registrar has received a
request from the Holder of a Global Security to issue such
individual Securities, the Company expressly acknowledges, with
respect to the right of any Holder to pursue a remedy pursuant to
Section 7.07 hereof, the right of any beneficial Holder of
Securities to pursue such remedy with respect to the portion of the
Global Security that represents such beneficial Holder’s
Securities as if such individual Securities had been
issued.
(iii) If
specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in
exchange in whole or in part for individual Securities of such
series on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(A) to each
Person specified by such Depositary a new individual Security or
Securities of the same series, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and
in exchange for such Person’s beneficial interest in the
Global Security; and
(B) to such
Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of individual
Securities delivered to Holders thereof.
(iv) In any
exchange provided for in clauses (i) through (iii), the Company
will execute and the Trustee will authenticate and deliver
individual Securities in registered form in authorized
denominations.
(v) Upon
the exchange in full of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee.
Individual Securities
issued in exchange for a Global
Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Persons in whose names
such Securities are so registered.
(d) All
Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company evidencing the
same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered for such registration of transfer or
exchange.
(e) Every
Security presented or surrendered for registration of transfer or
exchange, or for payment shall (if so required by the Company, the
Trustee or the Registrar) be duly endorsed, or be accompanied by a
written instrument or instruments of transfer in form satisfactory
to the Company, the Trustee and the Registrar, duly executed by the
Holder thereof or by his, her or its attorney duly authorized in
writing.
(f) No
service charge will be made for any registration of transfer or
exchange of Securities. The Company may require payment of a sum
sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than those expressly
provided in this Indenture to be made at the Company’s own
expense or without expense or charge to the Holders.
(g) The
Company shall not be required to (i) register, transfer or exchange
Securities of any series during a period beginning at the opening
of business 15 calendar days before the day of the transmission of
a notice of redemption of Securities of such series selected for
redemption under Section 4.03 and ending at the close of business
on the day of such transmission, or (ii) register, transfer or
exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed
in part.
(h) Prior
to the due presentation for registration of transfer or exchange of
any Security, the Company, the Trustee, the Paying Agent, the
Registrar, any co-Registrar or any of their agents may deem and
treat the Person in whose name a Security is registered as the
absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notation of ownership or other
writing thereon) for all purposes whatsoever, and none of the
Company, the Trustee, the Paying Agent, the Registrar, any
co-Registrar or any of their agents shall be affected by any notice
to the contrary.
(i) In
case a successor Company (“ Successor Company ”)
has executed an indenture supplemental hereto with the Trustee
pursuant to Article XIV, any of the Securities authenticated or
delivered pursuant to such transaction may, from time to time, at
the request of the Successor Company, be exchanged for other
Securities executed in the name of the Successor Company with such
changes in phraseology and form as may be appropriate, but
otherwise identical to the Securities surrendered for such exchange
and of like principal amount; and the Trustee, upon Company Order
of the Successor Company, shall authenticate and deliver Securities
as specified in such Company Order for the purpose of such
exchange. If Securities
shall at any time be authenticated
and delivered in any new name of a Successor Company pursuant to
this Section 3.06 in exchange or substitution for or upon
registration of transfer of any Securities, such Successor Company,
at the option of the Holders but without expense to them, shall
provide for the exchange of all Securities at the time Outstanding
for Securities authenticated and delivered in such new
name.
(j) Each
Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder’s Security in violation
of any provision of this Indenture and/or applicable United States
federal or state securities laws.
(k) The
Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any
transfer of any interest in any Security other than to require
delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same
to determine substantial compliance as to form with the express
requirements hereof.
(l) Neither
the Trustee nor any agent of the Trustee shall have any
responsibility for any actions taken or not taken by the
Depositary.
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Section 3.07
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Mutilated, Destroyed, Lost and Stolen
Securities .
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(a) If
(i) any mutilated Security is surrendered to the Trustee at its
Corporate Trust Office or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and the Trustee
security or indemnity satisfactory to them to save each of them and
any Paying Agent harmless, and neither the Company nor the Trustee
receives notice that such Security has been acquired by a protected
purchaser, then the Company shall execute and upon Company Order
the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a
new Security of the same series and of like tenor, form, terms and
principal amount, bearing a number not contemporaneously
Outstanding, and neither gain nor loss in interest shall result
from such exchange or substitution.
(b) In
case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay the amount
due on such Security in accordance with its terms.
(c) Upon
the issuance of any new Security under this Section 3.07, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in respect
thereto and any other expenses (including the fees and expenses of
the Trustee) in connection therewith.
(d) Every
new Security of any series issued pursuant to this Section shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued
hereunder.
(e) The
provisions of this Section 3.07 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.
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Section 3.08
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Payment of Interest; Interest Rights
Preserved .
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(a) Interest
on any 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 Record
Date for such interest notwithstanding the cancellation of such
Security upon any transfer or exchange subsequent to the Record
Date. Payment of interest on Securities shall be made at the
Corporate Trust Office (except as otherwise specified pursuant to
Section 3.01) or, at the option of the Company, by check mailed to
the address of the Person entitled thereto as such address shall
appear in the Register or, in accordance with arrangements
satisfactory to the Trustee, by wire transfer to an account
designated by the Holder.
(b) Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein
called “ Defaulted Interest ”) shall forthwith
cease to be payable to the Holder on the relevant Record Date by
virtue of his, her or its having been such a Holder, and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest to the
Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest (a
“ Special Record Date ”), 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 such Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 calendar days and not less than 10 calendar
days prior to the date of the proposed payment and not less than 10
calendar days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holders of such
Securities at their addresses as they appear in the Register, not
less than 10 calendar days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (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
(ii).
(ii) The
Company may make payment of any Defaulted Interest on Securities in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed or
of any automated quotation system on which any such Securities may
be quoted, and upon such notice as may be required by such exchange
or quotation system, as applicable, 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.
(c) Subject
to the foregoing provisions in this Section 3.08, each Security
delivered under this Indenture in exchange or substitution for, or
upon registration of transfer of, any other Security shall carry
all the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 3.09
Cancellation . Unless otherwise specified pursuant to
Section 3.01 for Securities of any series, all Securities
surrendered for payment, redemption, registration of transfer or
exchange or credit against any sinking fund or otherwise shall, if
surrendered to any Person other than the Trustee, be delivered to
the Trustee for cancellation and shall be promptly cancelled by it
and, if surrendered 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 that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in
this Section, except as expressly permitted by this Indenture. The
Trustee shall dispose of all cancelled Securities held by it in
accordance with its then customary procedures, unless otherwise
directed by a Company Order, and deliver a certificate of such
disposal to the Company upon its request therefor. The acquisition
of any Securities by the Company shall not operate as a redemption
or satisfaction of the Indebtedness represented thereby unless and
until such Securities are surrendered to the Trustee for
cancellation.
Section 3.10
Computation of Interest . Except as otherwise specified
pursuant to Section 3.01 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
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Section 3.11
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Currency of Payments in Respect of
Securities .
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(a) The
Company may provide pursuant to Section 3.01 for Securities of any
series that (i) the obligation, if any, of the Company to pay the
principal of, premium, if any, and interest on, the Securities of
any series in a Foreign Currency or U.S. Dollars (the “
Designated Currency ”) as may be specified pursuant to
Section 3.01 is of the essence and agrees that, to the fullest
extent possible under applicable law, judgments in respect of such
Securities shall be given in the Designated Currency; (ii) the
obligation of the Company to make payments in the Designated
Currency of the principal of and premium, if any, and interest on
such Securities shall, notwithstanding any payment in any other
Currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated
Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) on the
business day in the country of issue of the Designated Currency or
in the international banking
community (in the case of a
composite currency) immediately following the day on which such
Holder receives such payment; (iii) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional
amounts as may be necessary to compensate for such shortfall; and
(iv) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and
effect. Notwithstanding the foregoing, unless otherwise specified
pursuant to Section 3.01 for Securities of any series, payment of
the principal of, premium, if any, and interest on, Securities of
such series will be made in U.S. Dollars.
(b) If
the principal of, premium, if any, or interest on any Security is
payable in a Currency other than U.S. Dollars and such Currency is
not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in
U.S. Dollars in an amount equivalent of the amount payable in such
other Currency at the Exchange Rate as determined pursuant to
Section 3.11(d). Notwithstanding any provisions to the contrary
herein, any payment made under such circumstances in U.S. Dollars
where the required payment is in a Currency other than U.S. Dollars
will not constitute an Event of Default under this
Indenture.
(c) For
purposes of any provision of the Indenture where the Holders of
Outstanding Securities may perform an action that requires that a
specified percentage of the Outstanding Securities of all series
perform such action and for purposes of any decision or
determination by the Trustee of amounts due and unpaid for the
principal of, premium, if any, and interest on, the Securities of
all series in respect of which moneys are to be disbursed ratably,
the principal of, premium, if any, and interest on, the Outstanding
Securities denominated in a Foreign Currency will be the amount in
U.S. Dollars based upon the Exchange Rate as determined pursuant to
Section 3.11(d) (or as specified pursuant to Section 3.01, if
applicable) for Securities of such series, as of the date for
determining whether the Holders entitled to perform such action
have performed it or as of the date of such decision or
determination by the Trustee, as the case may be.
(d) Any
decision or determination to be made regarding the Exchange Rate
shall be made by the Company or an agent appointed by the Company
(the Company, in such capacity, or such agent, the “
Currency Determination Agent ”);
provided that such
agent shall accept such appointment in writing and the terms of
such appointment shall, in the opinion of the Company at the time
of such appointment, require such agent to make such determination
by a method consistent with the method provided pursuant to Section
3.01 for the making of such decision or determination. Unless
otherwise specified pursuant to Section 3.01, “ Exchange
Rate ” shall mean, for any Currency, the highest firm bid
quotation for U.S. Dollars received by the Currency Determination
Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date (or, if
no such rate is quoted on such date, the last date on which such
rate was quoted), from three recognized foreign exchange dealers in
the City of New York selected by the Currency Determination Agent
and approved by the Company (one of which may be the Currency
Determination Agent) for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of such
Currency payable on such payment date in respect of the Securities
of a series denominated in such
Currency; provided
that, notwithstanding the foregoing,
the Currency Determination Agent may use the noon buying rate in
New York City for cable transfers for any Currency as the
applicable Exchange Rate, as such rate is reported or otherwise
made available by the Federal Reserve Bank of New York on the date
of such payment, or, if such rate is not then available, on the
basis of the most recently available rate. All decisions and
determinations of such agent regarding the Exchange Rate shall, in
the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, the Trustee and all Holders
of the Securities.
Section 3.12
CUSIP Numbers . The Company in issuing any Securities may
use CUSIP, ISIN or other similar numbers, if then generally in use,
and thereafter with respect to such series, the Trustee may use
such numbers in any notice of redemption or exchange, as a
convenience to Holders, with respect to such series;
provided that any
such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly
notify the Trustee of any change in the CUSIP, ISIN or other
similar numbers.
ARTICLE IV
REDEMPTION OF
SECURITIES
Section 4.01
Applicability of Right of Redemption . Redemption of
Securities (other than pursuant to a sinking fund, amortization or
analogous provision) permitted by the terms of any series of
Securities shall be made (except as otherwise specified pursuant to
Section 3.01 for Securities of any series) in accordance with this
Article; provided , however , that if any such terms
of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
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Section 4.02
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Selection of Securities to be
Redeemed .
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(a) If
the Company shall at any time elect to redeem all or any portion of
the Securities of a series then Outstanding, it shall at least 15
calendar days (or such shorter period acceptable to the Trustee)
prior to the date the notice of redemption is to be mailed, notify
the Trustee of such Redemption Date and of the principal amount of
Securities to be redeemed, and thereupon the Trustee shall select
either pro rata, by lot or in such other manner as the Trustee
shall deem appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of
such series; provided that the unredeemed portion of the principal
amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination)
for such Security. In any case where more than one Security of such
series is registered in the same name, the Trustee may treat the
aggregate principal amount so registered as if it were represented
by one Security of such series. The Trustee shall, as soon as
practicable, notify the Company in writing of the Securities and
portions of Securities so selected.
(b) 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 that
has been or is to be redeemed. If the Company shall so direct,
Securities registered in the name of the Company, any Affiliate or
any Subsidiary thereof shall not be included in the Securities
selected for redemption.
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Section 4.03
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Notice of Redemption .
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(a) Notice
of redemption 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, not less than 30 nor more than 60 calendar
days prior to the Redemption Date, to the Holders of Securities of
any series to be redeemed in whole or in part pursuant to this
Article, in the manner provided in Section 16.04;
provided that the
Trustee be provided with the draft notice at least 15 days prior to
sending such notice of redemption. Any notice given in the manner
herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice. Failure to
give such notice, or any defect in such notice to the Holder of any
Security of a series designated for redemption, in whole or in
part, shall not affect the sufficiency of any notice of redemption
with respect to the Holder of any other Security of such
series.
(b) All
notices of redemption shall identify the Securities to be redeemed
(including CUSIP, ISIN or other similar numbers, if available) and
shall state:
(i) such
election by the Company to redeem Securities of such series
pursuant to provisions contained in this Indenture or the terms of
the Securities of such series in a Company Order or a supplemental
indenture establishing such series, if such be the case;
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(ii)
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the Redemption Date;
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(iii)
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the Redemption Price;
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(iv) if less
than all Outstanding Securities of any series are to be redeemed,
the identification (and, in the case of partial redemption, the
principal amounts) of the Securities of such series to be
redeemed;
(v) that
on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed, and that, if
applicable, interest thereon shall cease to accrue on and after
said date;
(vi) the
Place or Places of Payment where such Securities are to be
surrendered for payment of the Redemption Price; and
(vii) if
applicable, that the redemption is for a sinking fund, if such is
the case.
Section 4.04
Deposit of Redemption Price . On or prior to 11:00 a.m., New
York City time, on the Redemption Date for any Securities, 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 6.03) an amount of money in
the Currency in which such Securities
are denominated (except as provided
pursuant to Section 3.01) sufficient to pay the Redemption Price of
such Securities or any portions thereof that are to be redeemed on
that date.
Section 4.05
Securities Payable on Redemption Date . If notice of
redemption has been given as above provided, any Securities so to
be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price and from and after such date (unless the
Company shall Default in the payment of the Redemption Price) such
Securities shall cease to bear interest, and, except as provided in
Section 12.07, such Securities shall cease from and after the
Redemption Date to be entitled to any benefit or security under the
Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the Redemption Price
thereof and unpaid interest to the Redemption Date. Upon surrender
of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price;
provided , however , that (unless otherwise provided
pursuant to Section 3.01) installments of interest that have a
Stated Maturity on or prior to the Redemption Date for such
Securities shall be payable according to the terms of such
Securities and the provisions of Section 3.08.
If any Security called for
redemption shall not be so paid upon surrender thereof for
redemption, the principal thereof shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 4.06
Securities Redeemed in Part . Any Security that is to be
redeemed only in part shall be surrendered at the Corporate Trust
Office or such other office or agency of the Company as is
specified pursuant to Section 3.01 with, if the Company, the
Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company,
the Registrar and the Trustee duly executed by the Holder thereof
or his, her or its 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 like tenor and
form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered;
provided that if a
Global Security is so surrendered, the Company shall execute, and
the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security
in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Global Security so surrendered. In
the case of a Security providing appropriate space for such
notation, at the option of the Holder thereof, the Trustee, in lieu
of delivering a new Security or Securities as aforesaid, may make a
notation on such Security of the payment of the redeemed portion
thereof.
ARTICLE V
SINKING
FUNDS
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Section 5.01
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Applicability of Sinking Fund
.
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(a) Redemption
of Securities permitted or required pursuant to a sinking fund for
the retirement of Securities of a series by the terms of such
series of Securities shall be made
in accordance with such terms of
such series of Securities and this Article, except as otherwise
specified pursuant to Section 3.01 for Securities of such series;
provided , however , that if any such terms of a
series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
(b) 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 5.02.
Section 5.02
Mandatory Sinking Fund Obligation . The Company may, at its
option, satisfy any Mandatory Sinking Fund Payment obligation, in
whole or in part, with respect to a particular series of Securities
by (a) delivering to the Trustee Securities of such series in
transferable form theretofore purchased or otherwise acquired by
the Company or redeemed at the election of the Company pursuant to
Section 4.03 or (b) receiving credit for Securities of such series
(not previously so credited) acquired by the Company and
theretofore delivered to the Trustee. The Trustee shall credit such
Mandatory Sinking Fund Payment obligation with an amount equal to
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. If the
Company shall elect to so satisfy any Mandatory Sinking Fund
Payment obligation, it shall deliver to the Trustee not less than
45 calendar days prior to the relevant sinking fund payment date a
written notice signed on behalf of the Company by its Chairman of
the Board of Directors, Chief Executive Officer, President, Chief
Financial Officer, Senior Executive Vice President, Executive Vice
President, Vice President, Treasurer or an Assistant Treasurer,
which shall designate the Securities (and portions thereof, if any)
so delivered or credited and which shall be accompanied by such
Securities (to the extent not theretofore delivered) in
transferable form. In case of the failure of the Company, at or
before the time so required, to give such notice and deliver such
Securities, the Mandatory Sinking Fund Payment obligation shall be
paid entirely in moneys.
Section 5.03
Optional Redemption at Sinking Fund Redemption Price . In
addition to the sinking fund requirements of Section 5.02, to the
extent, if any, provided for by the terms of a particular series of
Securities, the Company may, at its option, make an Optional
Sinking Fund Payment with respect to such Securities. Unless
otherwise provided by such terms, (a) to the extent that the right
of the Company to make such Optional Sinking Fund Payment is not
exercised in any year, it shall not be cumulative or carried
forward to any subsequent year, and (b) such optional payment shall
operate to reduce the amount of any Mandatory Sinking Fund Payment
obligation as to Securities of the same series. If the Company
intends to exercise its right to make such optional payment in any
year, it shall deliver to the Trustee not less than 45 calendar
days prior to the relevant sinking fund payment date a certificate
signed by its Chairman of the Board of Directors, Chief Executive
Officer, President, Chief Financial Officer, Senior Executive Vice
President, Executive Vice President, Vice President, Treasurer or
an Assistant Treasurer, stating that the Company will exercise such
optional right, and specifying the amount which the Company will
pay on or before the next succeeding sinking fund payment date.
Such certificate shall also state that no Event of Default has
occurred and is continuing.
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Section 5.04
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Application of Sinking Fund Payment
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(a) If
the sinking fund payment or payments made in funds pursuant to
either Section 5.02 or 5.03 with respect to a particular series of
Securities plus any unused balance of any preceding sinking fund
payments made in funds with respect to such series shall exceed
$50,000 (or a lesser sum if the Company shall so request, or such
equivalent sum for Securities denominated other than in U.S.
Dollars), it shall be applied by the Trustee on the sinking fund
payment date next following the date of such payment;
provided that, if the
date of such payment shall be a sinking fund payment date, such
payment shall be applied on such sinking fund payment date to the
redemption of Securities of such series at the Redemption Price
specified pursuant to Section 4.03(b). The Trustee shall select, in
the manner provided in Section 4.02, for redemption on such sinking
fund payment date, a sufficient principal amount of Securities of
such series to absorb said funds, as nearly as may be, and shall,
at the expense and in the name of the Company, thereupon cause
notice of redemption of the Securities to be given in substantially
the manner provided in Section 4.03(a) for the redemption of
Securities in part at the option of the Company, except that the
notice of redemption shall also state that the Securities are being
redeemed for the sinking fund. Any sinking fund moneys not so
applied by the Trustee to the redemption of Securities of such
series shall be added to the next sinking fund payment received in
funds by the Trustee and, together with such payment, shall be
applied in accordance with the provisions of this Section 5.04. Any
and all sinking fund moneys held by the Trustee on the last sinking
fund payment date with respect to Securities of such series, and
not held for the payment or redemption of particular Securities of
such series, shall be applied by the Trustee to the payment of the
principal of the Securities of such series at Maturity.
(b) On
or prior to each sinking fund payment date, the Company shall pay
to the Trustee a sum equal to all interest accrued to but not
including the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date pursuant to this Section
5.04.
(c) The
Trustee shall not redeem any Securities of a series with sinking
fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund during the continuance of a
Default in payment of interest on any Securities of such series or
of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) of which the Trustee has actual
knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem
such Securities if funds sufficient for that purpose shall be
deposited with the Trustee in accordance with the terms of this
Article. Except as above provided, any moneys in the sinking fund
at the time any such Default or Event of Default shall occur and
any moneys thereafter paid into the sinking fund shall, during the
continuance of such Default or Event of Default, be held as
security for the payment of all the Securities of such series;
provided , however , that in case such Default or
Event of Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking
fund payment date on which such moneys are required to be applied
pursuant to the provisions of this Section 5.04.
ARTICLE VI
PARTICULAR COVENANTS OF THE
COMPANY
The Company hereby covenants and
agrees as follows:
Section 6.01
Payments of Principal, Premium and Interest . The Company,
for the benefit of each series of Securities, will duly and
punctually pay or cause to be paid the principal of, premium, if
any, and interest on, each series of Securities, at the dates and
place and in the manner provided in the Securities and in this
Indenture.
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Section 6.02
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Maintenance of Office or Agency; Paying
Agent .
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(a) The
Company will maintain in each Place of Payment for any series of
Securities, if any, an office or agency where Securities 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 and this Indenture may be served. 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, and
the Company hereby appoints the Trustee as Paying Agent to receive
all presentations, surrenders, notices and demands.
(b) The
Company may also from time to time designate different or
additional offices or agencies where the Securities of any series
may be presented or surrendered for any or all such purposes (in or
outside of such Place of Payment), and may from time to time
rescind any such designations; provided , however ,
that no such designation or rescission shall in any manner relieve
the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the
Trustee of any such additional designation or rescission of
designation and of any change in the location of any such different
or additional office or agency. The Company shall enter into an
appropriate agency agreement with any Paying Agent not a party to
this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. The Company
or any Affiliate thereof may act as Paying Agent.
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Section 6.03
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To Hold Payment in Trust .
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(a) If
the Company or an Affiliate thereof shall at any time act as Paying
Agent with respect to any series of Securities, then, on or before
the date on which the principal of and premium, if any, or interest
on any of the Securities of that series by their terms or as a
result of the calling thereof for redemption shall become payable,
the Company or such Affiliate will segregate and hold in trust for
the benefit of the Holders of such Securities or the Trustee a sum
sufficient to pay such principal and premium, if any, or interest
which shall have so become payable until such sums shall be paid to
such Holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that
regard.
Upon any proceeding under the
Bankruptcy Code or any applicable state bankruptcy laws with
respect to the Company or any Affiliate thereof, if the Company or
such Affiliate is then acting as Paying Agent, the Trustee shall
promptly replace the Company or such Affiliate as Paying
Agent.
(b) If
the Company shall appoint, and at the time have, a Paying Agent for
the payment of the principal of and premium, if any, or interest on
any series of Securities, then prior to 11:00 a.m., New York City
time, on the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become
payable as above provided, whether by their terms or as a result of
the calling thereof for redemption, the Company will deposit with
such Paying Agent a sum sufficient to pay such principal and
premium, if any, or interest, such sum to be held in trust for the
benefit of the Holders of such Securities or the Trustee, and
(unless such Paying Agent is the Trustee), the Company or any other
obligor of such Securities will promptly notify the Trustee of its
payment or failure to make such payment.
(c) If
the Paying Agent shall be other than the Trustee, the Company will
cause such Paying Agent 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 6.03, that such Paying
Agent shall:
(i) comply
with the provisions of the Trust Indenture Act applicable to it as
Paying Agent;
(ii) hold
all moneys held by it for the payment of the principal of and
premium, if any, or interest on the Securities of that series in
trust for the benefit of the Holders of such Securities until such
sums shall be paid to such Holders or otherwise disposed of as
herein provided;
(iii) give to
the Trustee notice of any Default by the Company or any other
obligor upon the Securities of that series in the making of any
payment of the principal of and premium, if any, or interest on the
Securities of that series; and
(iv) at any
time during the continuance of any such Default, upon the written
request of the Trustee, pay to the Trustee all sums so held in
trust by such Paying Agent.
(d) Anything
in this Section 6.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release,
satisfaction or discharge of this Indenture or for any other
reason, pay or cause to be paid to the Trustee all sums held in
trust by the Company or by any Paying Agent other than the Trustee
as required by this Section 6.03, such sums to be held by the
Trustee upon the same trusts as those upon which such sums
w
