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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report - March 6, 2001
(Date of earliest event reported)
QUESTAR MARKET RESOURCES, INC.
(Exact name of registrant as specified in charter)
STATE OF UTAH 0-30321 87-0287750
(State or other juris- (Commission (I.R.S. Employer
diction of incorporation File No.) Identification No.)
or organization)
P. O. Box 45601, 180 East 100 South, Salt Lake City, Utah
84145-0601
(Address of principal executive offices)
Registrant's telephone number, including area code (801) 324-5555
Not Applicable
(Former name or former address, if changed since last report.)
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Exhibit
4.01. Indenture, dated as of March 1, 2001, between
Questar Market Resources, Inc. and Bank One, NA,
as Trustee.
4.02. Form of 71/2% Notes due 2011.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
QUESTAR MARKET RESOURCES, INC.
(Registrant)
March 12, 2001 /s/G. L. Nordloh
(Date) G. L. Nordloh
President and Chief Executive
Officer
EXHIBIT INDEX
Exhibit
Number Exhibit
4.01. Indenture, dated as of March 1, 2001,
between Questar Market Resources, Inc. and
Bank One, NA, as Trustee.
4.02. Form of 71/2% Notes due 2011.
Exhibit No. 4.01.
QUESTAR MARKET RESOURCES, INC.
TO
BANK ONE, NA
Trustee
INDENTURE
Dated as of March 1, 2001
DEBT SECURITIES
QUESTAR MARKET RESOURCES, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of March 1, 2001
Trust Indenture
Act Section Indenture Section
Section 310(a) 606(d)
609
610
(b) 603
606(d)
Section 311(a) 603
(b) 703
Section 312(a) 701
702
(b) 702
(c) 702
Section 313(a) 703
(b) 703
(c) 703
704
(d) 703
Section 314(a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 101
102
203
Section 315(a) 601(a)
(b) 703
(c) 601
(d) 601(a)
(d)(1) 601(a)
(d)(2) 601(c)
(d)(3) 601(e)
(e) Not Applicable
Section 316(a)(1)(A) 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318 107
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . 2
SECTION 102. Compliance Certificates and
Opinions.. . . . . . . . . . . . .12
SECTION 103. Form of Documents Delivered to
Trustee. . . . . . . . . . . . . .13
SECTION 104. Acts of Holders. . . . . . . . . .13
SECTION 105. Notices, Etc., to Trustee and
Company. . . . . . . . . . . . . .15
SECTION 106. Notice to Holders of Securities;
Waiver.. . . . . . . . . . . . . .16
SECTION 107. Conflict with Trust Indenture
Act. . . . . . . . . . . . . . . .17
SECTION 108. Effect of Headings and Table of
Contents.. . . . . . . . . . . . .17
SECTION 109. Successors and Assigns.. . . . . .17
SECTION 110. Separability Clause. . . . . . . .17
SECTION 111. Benefits of Indenture. . . . . . .17
SECTION 112. Governing Law. . . . . . . . . . .17
SECTION 113. Moneys of Different Currencies to
be Segregated. . . . . . . . . . .17
SECTION 114. Payment to be in Proper Currency..18
SECTION 115. Language of Notices. . . . . . . .18
SECTION 116. Legal Holidays.. . . . . . . . . .18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . .19
SECTION 202. Form of Trustee's Certificate of
Authentication.. . . . . . . . . .19
SECTION 203. Securities in Global Form. . . . .20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in
Series.. . . . . . . . . . . . . .20
SECTION 302. Currency; Denominations. . . . . .24
SECTION 303. Execution, Authentication,
Delivery and Dating. . . . . . . .24
SECTION 304. Temporary Securities.. . . . . . .26
SECTION 305. Registration, Registration of
Transfer and Exchange. . . . . . .27
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . .30
SECTION 307. Payment of Interest and Certain
Additional Amounts;
Rights to Interest and Certain Additional
Amounts Preserved. . . . . . . . . . . . .31
SECTION 308. Persons Deemed Owners. . . . . . .33
SECTION 309. Cancellation.. . . . . . . . . . .33
SECTION 310. Computation of Interest. . . . . .34
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . .34
SECTION 402. Application of Trust Money.. . . .35
SECTION 403. Satisfaction, Discharge and
Defeasance of Securities of Any
Series.. . . . . . . . . . . . . .36
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . .38
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.. . . . .40
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee..41
SECTION 504. Trustee May File Proofs of Claim..42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities
or Coupons.. . . . . . . . . . . . . . . .42
SECTION 506. Application of Money Collected.. .43
SECTION 507. Limitation on Suits. . . . . . . .43
SECTION 508. Unconditional Right of Holders to
Receive Principal and any
Premium, Interest and Additional Amounts..44
SECTION 509. Restoration of Rights and
Remedies. . . . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative.. .44
SECTION 511. Delay or Omission Not Waiver.. . .44
SECTION 512. Control by Holders.. . . . . . . .45
SECTION 513. Waiver of Past Defaults. . . . . .45
SECTION 514. Waiver of Stay or Extension Laws..45
SECTION 515. Judgment Currency. . . . . . . . .46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Rights of Trustee. . . . .46
SECTION 602. Not Responsible for Recitals or
Issuance of Securities.. . . . . .48
SECTION 603. May Hold Securities. . . . . . . .48
SECTION 604. Money Held in Trust. . . . . . . .48
SECTION 605. Compensation and Reimbursement.. .48
SECTION 606. Resignation and Removal;
Appointment of Successor.. . . . .49
SECTION 607. Acceptance of Appointment by
Successor. . . . . . . . . . . . .50
SECTION 608. Merger, Conversion, Consolidation
or Succession to Business. . . . .51
SECTION 609. Corporate Trustee Required;
Eligibility. . . . . . . . . . . .52
SECTION 610. Appointment of Authenticating
Agent. . . . . . . . . . . . . . .52
SECTION 611. Notice of Defaults.. . . . . . . .54
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders.. . . . .54
SECTION 702. Preservation of Information;
Communications to Holders. . . . .54
SECTION 703. Reports by Trustee.. . . . . . . .55
SECTION 704. Reports by Company.. . . . . . . .55
ARTICLE EIGHT
CONSOLIDATION, MERGER OR SALE
SECTION 801. Consolidation, Merger or Sale. . .56
SECTION 802. Successor Corporation
Substituted. . . . . . . . . . . .56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders.. . . . . . . .57
SECTION 902. Supplemental Indentures with
Consent of Holders.. . . . . . . .58
SECTION 903. Execution of Supplemental
Indentures.. . . . . . . . . . . .60
SECTION 904. Effect of Supplemental
Indentures. . . . . . . . . . . . 60
SECTION 905. Conformity with Trust Indenture
Act. . . . . . . . . . . . . . . .60
SECTION 906. Reference in Securities to
Supplemental Indentures. . . . . .60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest and
Additional Amounts. . . . . . . . . . . .60
SECTION 1002. Maintenance of Office or Agency. .61
SECTION 1003. Money for Securities Payments to
Be Held in Trust.. . . . . . . . .62
SECTION 1004. Additional Amounts.. . . . . . . .63
SECTION 1005. Corporate Existence. . . . . . . .64
SECTION 1006. Limitation on Liens. . . . . . . .64
SECTION 1008. Waiver of Covenant.. . . . . . . .69
SECTION 1009. Statements as to Compliance;
Notice of Certain Defaults.. . . .69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.. . . . .70
SECTION 1102. Election to Redeem; Notice to
Trustee. . . . . . . . . . . . . .70
SECTION 1103. Selection by Trustee of Securities
to be Redeemed.. . . . . . . . . .70
SECTION 1104. Notice of Redemption.. . . . . . .71
SECTION 1105. Deposit of Redemption Price. . . .72
SECTION 1106. Securities Payable on Redemption
Date.. . . . . . . . . . . . . . .72
SECTION 1107. Securities Redeemed in Part. . . .73
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.. . . . .73
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities.. . . . .73
SECTION 1203. Redemption of Securities for
Sinking Fund.. . . . . . . . . . .74
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.. . . . .74
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1401. Applicability of Article.. . . . .75
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May be
Called.. . . . . . . . . . . . . .75
SECTION 1502. Call, Notice and Place of
Meetings. . . . . . . . . . . . . 75
SECTION 1503. Persons Entitled to Vote at
Meetings.. . . . . . . . . . . . .76
SECTION 1504. Quorum; Action.. . . . . . . . . .76
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . .77
SECTION 1506. Counting Votes and Recording
Action of Meetings.. . . . . . . .78
INDENTURE, dated as of March 1, 2001 (the
"Indenture"), between QUESTAR MARKET RESOURCES, INC., a
corporation duly organized and existing under the laws of
the State of Utah (herein called "Company"), having its
principal office at 180 East 100 South Street, Salt Lake
City, Utah 84111, and BANK ONE, NA, a national banking
association duly incorporated and existing under the laws
of the United States of America (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance
from time to time of its unsecured debentures, notes or
other evidences of indebtedness (herein called the
"Securities"), unlimited as to principal amount, to bear
such rates of interest, to mature at such time or times,
to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make
this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
This Indenture is subject to the provisions of
the Trust Indenture Act of' 1939, as amended, and the
rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be
part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders (as hereinafter
defined) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of
the Securities or of any series thereof and any Coupons
(as hereinafter defined), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are
defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles and, except
as to any computation required or permitted pursuant to,
and relating to any covenant of the Company contained in,
any indenture supplemental hereto relating to any series
of Securities, which such computation (unless otherwise
provided in such supplemental indenture) shall be made in
accordance with generally accepted accounting principles
as are generally accepted at the date of such supplemental
indenture, or except as otherwise herein or in any
indenture supplemental hereto expressly provided, the term
"generally accepted accounting principles" with respect to
any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at
the date of such computation; and
(4) the words "herein", "hereof", "hereto" 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.
(5) the word "or" is always used inclusively
(for example, the phrase "A or B" means "A or B or both",
not "either A or B but not both").
Certain terms, used principally in Article Six,
are defined in that Article.
"Act", when used with respect to any Holder, has
the meaning specified in Section 104.
"Additional Amounts" means any additional amounts
which are required hereby or by any Security, under
circumstances specified herein or therein, to be paid by
the Company in respect of certain taxes imposed on Holders
specified therein and which are owing to such Holders.
"Affiliate" of any specified Person means any
other person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, as of the date of
determination, the present value of net rent for the
remaining term of a capital lease, determined in
accordance with GAAP, which is part of a Sale and
Leaseback Transaction, including any periods for which the
lessee has the right to renew or extend the lease. For
purposes of the foregoing, "net rent" means the sum of
capitalized rental payments required to be paid by the
lessee, other than amounts required to be paid by the
lessee for maintenance, repairs, insurance, taxes,
assessments, energy, fuel, utilities and similar charges.
In the case of a capital lease which is terminable by the
lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent
shall be considered to be required to be paid under such
lease subsequent to the first date upon which it may be so
terminated.
"Authenticating Agent" means any Person
authorized by the Trustee pursuant to Section 610 to act
on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of
general circulation in the place of publication, printed
in the official language of the country of publication and
customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever
successive weekly publications in an Authorized Newspaper
are authorized or required hereunder, they may be made
(unless otherwise expressly provided herein) on the same
or different days of the week and in the same or different
Authorized Newspapers.
"Bearer Security" means any Security in the form
of bearer securities established pursuant to Section 201
which is payable to bearer and is not a Registered Security.
"Board of Directors" means either the Board of
Directors of the Company or any duly authorized committee
of that Board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Book-Entry Security" means a security evidencing
all or part of a series of Securities, issued to the
Depositary for such series of Securities in accordance
with Section 303, and bearing the legend prescribed in
Section 303.
"Business Day", when used with respect to any
Place of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Change of Control" means the occurrence of any
of the following:
(a) Questar Corporation or any of its
affiliates ceases to own, directly or indirectly,
beneficially or of record or otherwise, collectively more
than 50% of the aggregate voting power of the voting stock
(PAGE 3>
of the Company (or its successor by merger, consolidation
or purchase of all or substantially all of its assets);
(b) the sale, lease, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the assets of
the Company and its Subsidiaries taken as a whole to any
person or group (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) other than to Questar
Corporation or any of its affiliates; or
(c) the adoption by the stockholders of the
Company of a plan or proposal of the liquidation or
dissolution of the Company.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not
existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing
such duties at such time.
"Company" means the Person named as the "Company"
in the first paragraph of this instrument until a
successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other
obligor under the Securities.
"Company Request" or "Company Order" means a
written request or order signed in the name of the Company
by its Chairman of the Board, its Vice Chairman of the
Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Capitalization" means, without
duplication, the sum of (a) the principal amount of
Consolidated Funded Debt of the Company and its
Subsidiaries at the time outstanding, (b) the total
capital represented by the capital stock of the Company
and its Subsidiaries at the time outstanding, based, in
the case of stock having par value, upon its par value,
and in the case of stock having no par value, upon the
value stated on the books of the Company, (c) the total
amount of (or less the amount of any deficit in) retained
earnings and paid-in capital of the Company and its
Subsidiaries, (d) reserves for deferred federal and state
income taxes arising from timing differences, and (e)
Attributable Debt, all as shown on a consolidated balance
sheet of the Company and its Subsidiaries prepared in
accordance with GAAP; provided that in determining the
consolidated retained earnings and paid-in capital of the
Company and its Subsidiaries no effect shall be given to
any unrealized write-up or write-down in the value of
assets or any amortization thereof, except for accumulated
provisions for depreciation, depletion, amortization and
property retirement which shall have been created by
charges made by the Company or any of its Subsidiaries on
its books.
"Consolidated Funded Debt" means the Funded Debt
of the Company and its Subsidiaries, consolidated in
accordance with GAAP.
"Corporate Trust Office" means the principal
office of the Trustee in Chicago, Illinois, at which at
any particular time its corporate trust business shall be
administered, which office at the date of initial
execution of this Indenture, as to the Trustee, is 1 Bank
One Plaza, Suite 0126, Chicago, Illinois 60602, Attention:
Corporate Trust Department.
"Corporation" includes corporations,
partnerships, limited liability companies, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining
to any Security.
"Currency" or "Money", with respect to any
payment, deposit or other transfer in respect of the
principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means the
unit or units of legal tender for the payment of public
and private debts (or any composite thereof) in which such
payment, deposit or other transfer is required to be made
by or pursuant to the terms hereof and, with respect to
any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof, means Dollars.
"Currency Indexed Note" means any Security with
the amount of principal payments determined by reference
to an index Currency.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" or "U.S. Depositary" means, with
respect to the Securities of any series issuable or issued
in whole or in part in global form, including Book-Entry
Securities, the Person designated as Depositary or "U.S.
Depositary" by the Company pursuant to Section 301 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" shall be a
collective reference to such Persons. "Depositary" as used
with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that
series.
"Dollar" means the coin or currency of the United
States of America as at the time of payment is legal
tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined
and revised from time to time by the Council of the
European Communities.
"Event of Default" has the meaning specified in
Section 501.
"Foreign Currency" means a currency issued by the
government of any country other than the United States of
America.
"Funded Debt" means all Indebtedness that will
mature, pursuant to a mandatory sinking fund or prepayment
provision or otherwise, and all installments of
Indebtedness that will fall due, more than one year from
the date of determination. In calculating the maturity of
any Indebtedness, there shall be included the term of any
unexercised right of the debtor to renew or extend such
Indebtedness existing at the time of determination.
"GAAP" means generally accepted accounting
principles in the United States, as in effect on the date
on which the determination is to be made under the Indenture.
"Government Obligations", with respect to any
Security, means (i) direct obligations of the government
or governments which issued the Currency in which the
principal of or any premium or interest on such Security
or any Additional Amounts in respect thereof shall be
payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of
such government or governments or (ii) obligations of a
Person controlled or supervised by and acting as an agency
or instrumentality of such government or governments, in
each case where the payment or payments thereunder are
unconditionally guaranteed as a full faith and credit
obligation by such government or governments, and which,
in the case of (i) or (ii), are not callable or redeemable
at the option of the issuer or issuers thereof, and shall
also include a depository receipt issued by a bank or
trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such
Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount
received by the custodian in respect of the Government
Obligation or the specific payment of interest on or
principal of or other amount with respect to the
Government Obligation evidenced by such depository receipt.
"Holder" means, with respect to a Registered
Security, the Person in whose name a Security is
registered in the Security Register and, with respect to a
Bearer Security (or any temporary Global Security), and/or
Coupons, the bearer thereof.
"Indebtedness" means all items of indebtedness
for borrowed money (other than unamortized debt discount
and premium) which would be included in determining total
liabilities as shown on the liability side of a balance
sheet prepared in accordance with GAAP as of the date as
of which Indebtedness is to be determined, and shall
include indebtedness for borrowed money (other than
unamortized debt discount and premium) with respect to
which the Company or any Subsidiary customarily pays
interest secured by any mortgage, pledge or other lien or
encumbrance of or upon, or any security interest in, any
properties or assets owned by the Company or any
Subsidiary, whether or not the Indebtedness secured
thereby shall have been assumed, and shall also include
guarantees of Indebtedness of others; provided that in
determining Indebtedness of the Company or any Subsidiary
there shall be included the aggregate liquidation
preference of all outstanding securities of any Subsidiary
senior to its Common Stock that are not owned by the
Company or a Subsidiary; and provided, further, that
Indebtedness of any Person shall not include the following:
(a) any indebtedness evidence of which is held
in treasury (but the subsequent resale of such
indebtedness shall be deemed to constitute the creation
thereof); or
(b) any particular indebtedness if, upon or
prior to the maturity thereof, there shall have been
deposited with a depository (or set aside and segregated,
if permitted by the instrument creating such
indebtedness), in trust, money (or evidence of such
indebtedness as permitted by the instrument creating such
indebtedness) in the necessary amount to pay, redeem or
satisfy such indebtedness; or
(c) any indebtedness incurred to finance oil,
natural gas, hydrocarbon, inert gas or other mineral
exploration or development to the extent that the issuer
thereof has outstanding advances to finance oil, natural
gas, hydrocarbon, inert gas or other mineral exploration
or development, but only to the extent such advances are
not in default; or
(d) any indebtedness incurred without recourse
to the Company or any Subsidiary; or
(e) any indebtedness incurred to finance
advance payments for gas (pursuant to take-or-pay
provisions or otherwise), but only to the extent that such
advance payments are pursuant to gas purchase contracts
entered into in the normal course of business; or
(f) any amount (whether or not included in
determining total liabilities as shown on the liability
side of a balance sheet prepared in accordance with GAAP)
representing capitalized rent under any lease; or
(g) any indirect guarantees or other
contingent obligations in respect of indebtedness of other
Persons, including agreements, contingent or otherwise,
with such other Persons or with third parties with respect
to, or to permit or assure the payment of, obligations of
such other Persons, including, without limitation,
agreements to purchase or repurchase obligations of such
other Persons, to advance or supply funds to, or to invest
in, such other Persons, or to pay for property, products
or services of such other Persons (whether or not
conveyed, delivered or rendered); demand charge contracts,
through-put, take-or-pay, keep-well, make-whole or
maintenance of working capital or similar agreements; or
guarantees with respect to rental or similar periodic
payments to be made by such other Persons.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof
and with respect to any Security, by the terms and
provisions of such Security and any Coupon appertaining
thereto established as contemplated by Section 301 (as
such terms and provisions may be amended pursuant to the
applicable provisions hereof) provided, however, that, if
at any time more than one Person is acting as Trustee
under this Indenture due to the appointment of one or more
separate Trustees for any one or more separate series of
Securities, "Indenture" shall mean, with respect to such
series of Securities for which any such Person is Trustee,
this Indenture as originally executed or as it may from
time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to
the applicable provisions hereof and shall include the
terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section
301, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or
provisions were adopted and exclusive of any provisions or
terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such
Person had become such Trustee but to which such Person,
as such Trustee, was not a party.
"Independent Public Accountants" means
accountants or a firm of accountants that, with respect to
the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the
meaning of the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission
thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other
independent public accountants. Such accountants or firm
shall be entitled to rely upon any Opinion of Counsel as
to the interpretation of any legal matters relating to the
Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of
which provide that the principal amount thereof payable at
Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
"Interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest
only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect
to any Security, means the Stated Maturity of an
installment of interest on such Security.
"Legal Holiday", with respect to any Place of
Payment or other location, means a Saturday, a Sunday or a
day on which banking institutions or trust companies in
such Place of Payment or other location are authorized or
obligated to be closed.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call
for redemption, notice of option to elect repayment or
otherwise and includes any Redemption Date.
"Moody's" means Moody's Investors Service or, if
Moody's Investors Service shall cease rating debt
securities having a maturity at original issue of at least
one year and such ratings business shall have been
transferred to a successor Person, such successor Person;
provided, however, that if there is no successor Person,
then "Moody's" shall mean any other national recognized
rating agency, other than S&P, that rates debt securities
having a maturity at original issuance of at least one
year and that shall have been designated by the Company.
"New York Business Day" means each weekday which
is not a day on which banking institutions in New York
City are authorized or obligated by law to close.
"Office or Agency", with respect to any
Securities, means an office or agency of the Company
maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or
agency of the Company maintained or designated for such
Securities pursuant to Section 1002 or, to the extent
designated or required by Section 1002 in lieu of such
office or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate
signed (i) by the Chairman of the Board, the Vice Chairman
of the Board, the President or a Vice President, and (ii)
by the Controller, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company,
that complies with the requirements of Section 314(e) of
the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of or counsel for the
Company or other counsel who shall be reasonably
acceptable to the Trustee, that complies with the
requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 502.
"Outstanding", when used with respect to
Securities, means, as of the date of determination, all
Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or the Security Registrar or delivered to the
Trustee or the Security Registrar for cancellation;
(ii) Securities for whose payment or redemption
(a) 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 (b) U.S.
Government Obligations or Foreign Government Securities as
contemplated by Section 403 in the necessary amount have
been theretofore deposited with the Trustee in trust for
the Holders of such Securities in accordance with Section
403; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to
this Indenture or provisions therefor satisfactory to the
Trustee has been made;
(iii) any such Security with respect to which
the Company has effected defeasance pursuant to Section
403 hereof; and
(iv) Securities which have been paid pursuant
to Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders
of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum
purposes, the principal amount of any Original Issue
Discount Securities that shall be deemed to be Outstanding
for such purposes shall be equal to the amount of the
principal thereof that would be due and payable as of the
date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section
502, the principal amount of a Security denominated other
than in Dollars shall be deemed to be that amount of
Dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange for such Foreign
Currency or such currency unit as determined by the
Company or by an authorized exchange rate agent, the
principal amount of any indexed Security that may be
counted in making such determination and that shall be
deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this
Indenture, and Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person, which may be the
Company, authorized by the Company to pay the principal of
(and premium, if any) or interest on, or any Additional
Amounts with respect to any Securities or any Coupon on
behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where
the principal of (and premium, if any) and interest on, or
any Additional Amounts with respect to, the Securities of
that series are payable as specified and contemplated by
Section 301.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion
of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security or any Security to which a mutilated,
destroyed, lost or stolen Coupon appertains shall be
deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to
which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Rating Agencies" means Moody's and S&P.
"Rating Date" means the earlier of the date of
public notice of (i) the occurrence of a Change of Control
or (ii) the intention of the Company to effect a Change of
Control.
"Rating Decline" shall be deemed to have occurred
with respect to the Securities of any series if, no later
than 90 days after the Rating Date (which period shall be
extended so long as the rating of such Securities is under
publicly announced consideration for possible downgrade by
either of the Rating Agencies), either of the Rating
Agencies assigns a rating to such Securities that is lower
than an investment grade rating. An investment grade
rating with respect to Moody's shall mean a rating of
"Baa3" or higher and an investment grade rating with
respect to S&P shall mean a rating of "BBB-" or higher.
"Redemption Date", when used with respect to any
Security or portion thereof to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security or portion thereof to be redeemed, means the
price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the
form of Registered Securities established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Securities of any series
means the date specified for that purpose as contemplated
by Section 301.
"Required Currency" has the meaning specified in
Section 114.
"Responsible Officer", when used with respect to
the Trustee, means an officer of the Corporate Trust
Department of the Trustee engaged in the administration of
corporate trust matters.
"S&P" means Standard & Poor's Ratings Services
or, if Standard & Poor's Ratings Services shall cease
rating debt securities having a maturity at original issue
of at least one year and such ratings business shall have
been transferred to a successor Person, such successor
Person; provided, however, that if there is no successor
Person, then "S&P" shall mean any other national
recognized rating agency, other than Moody's, that rates
debt securities having a maturity at original issuance of
at least one year and that shall have been designated by
the Company.
"Sale and Leaseback Transaction" means an
arrangement in which the Company or a Subsidiary sells any
of its property which was placed into service more than
120 days prior to such sale to a Person and leases it back
from that Person within 180 days of the sale.
"Security" or "Securities" has the meaning stated
in the first recital of this Indenture and more
particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as
Trustee under this Indenture, "Securities" shall mean
Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect
thereto, means the date specified in such Security as the
fixed date on which the principal of such Security or such
installment of principal or interest is or such Additional
Amounts are due and payable.
"Subsidiary" means a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly
or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" shall mean each such Person,
and as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that
Series.
"Trust Indenture Act" means the Trust Indenture
Act of 1939, as amended, as in force at the date as of
which this instrument was executed, except as provided in
Section 905.
"United States", except as otherwise provided
herein or in any Security, means the United States of
America (including the states thereof and the District of
Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien", except as otherwise
provided in or pursuant to this Indenture, means any
Person who, for United States Federal income tax purposes,
is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members
of which is, for United States Federal income tax
purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign
estate or trust.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president, whether
or not designated by a number or a word or words added
before or after the title "Vice President".
"Voting Stock" means stock of the class or
classes of any corporation having general voting power
under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time
stock of any other class or classes of such corporation
shall have or might have voting power by reason of the
happening of any contingency) provided that, for the
purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not
be considered voting stock whether or not such event shall
have happened.
SECTION 102. Compliance Certificates and Opinions.
Upon any Company Request made by the Company to
the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such Company
Request as to which the furnishing of such documents or
any of them is specifically required by any provision of
this Indenture relating to such particular Company
Request, no additional certificate or opinion need be
furnished. Each such Officers' Certificate and Opinion of
Counsel shall comply with Section 314(e) of the Trust
Indenture Act.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to
be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or
covered by only one document, but one such person may
certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based
are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by,
an officer or officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or
in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in
writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of
Article Fifteen, or a combination of such instruments and
any such record. Except as herein otherwise expressly
provided, such action shall become effective when such
instrument or instruments or record or both are delivered
to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any
such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject
to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in
this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in
Section 1506.
Without limiting the generality of this Section
104, unless otherwise provided in or pursuant to this
Indenture, a Holder, including a U.S. Depositary that is a
Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such
global Security through such U.S. Depositary's standing
instructions and customary practices.
The Trustee or the Company shall fix a record
date for the purpose of determining the Persons who are
beneficial owners of interest in any permanent global
Security held by a U.S. Depositary entitled under the
procedures of such U.S. Depositary to make, give or take,
by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Indenture
to be made, given or taken by Holders. If such a record
date is fixed, the Holders on such record date or their
duly appointed proxy or proxies, and only such Persons,
shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver
or other action, whether or not such Holders remain
Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be valid or effective if made, given or taken
more than 90 days after such record date.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership, principal amount and serial
numbers of Bearer Securities held by any Person, and the
date of the commencement and the date of termination of
holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as
Depositary, by any trust company, bank, banker or other
depositary reasonably acceptable to the Company, wherever
situated, if such certificate shall be deemed by the
Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such
Depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by
the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer
Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the
same Bearer Security is produced, (2) such Bearer Security
is produced to the Trustee by some other Person, (3) such
Bearer Security is surrendered in exchange for a
Registered Security or (4) such Bearer Security is no
longer Outstanding.
(d) The fact and date of execution of any such
instrument or writing pursuant to clause (c) above, the
authority of the Person executing the same and the
principal amount and serial numbers of Bearer Securities
held by the Person so executing such instrument or writing
and the date of the commencement and the date of
termination of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with
respect to any of the matters referred to in this clause.
(e) The ownership of Registered Securities
shall be proved by the Security Register.
(f) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of
the same Security and the holder of every Security issued
upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action
is made upon such Security.
(g) Whenever for purposes of any Act to be
taken hereunder by the Holders of a series of Securities
denominated in a Foreign Currency (or any currency unit),
the principal amount of Securities is required to be
determined, the aggregate principal amount of such
Securities shall be deemed to be that amount of Dollars
that could be obtained for such principal amount on the
basis of the spot rate of exchange for such Foreign
Currency or such currency unit as determined by the
Company or by an authorized exchange rate agent and
evidenced to the Trustee by an Officers' Certificate as of
the date taking of such Act by the Holders of the
requisite percentage in principal amount of the Securities
is evidenced to the Trustee. An exchange rate agent may be
authorized in advance or from time to time by the Company,
and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate
agent shall be conclusive and binding on all Holders, the
Company and the Trustee, and neither the Company nor any
such exchange rate agent shall be liable therefor in the
absence of bad faith.
(h) If the Company shall solicit from the
Holders of any Registered Securities, any request, demand,
authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a
Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of
Registered Securities of record at the close of business
on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Where this Indenture provides for notice to
Holders of Securities of any event, (i) if any of the
Securities affected by such event are Registered
Securities, such notice to the Holders thereof shall be
sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at
his address as it appears in the Security Register, within
the time prescribed for the giving of such notice and (ii)
if any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be
sufficiently given (unless otherwise herein or in the
terms of such Bearer Securities expressly provided) if
published once in an Authorized Newspaper in New York, New
York, and in such other city or cities, if any, as may be
specified in such Securities and, if the Securities of
such series are listed on any stock exchange outside the
United States, in any place at which such Securities are
listed on a securities exchange to the extent that such
securities exchange so requires, and mailed to such
Persons whose names and addresses as were previously filed
with the Trustee, within the time prescribed for giving
such notice. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect
to other Holders. In case by reason of the suspension of
publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such publication in
lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such
notice. Neither failure to give notice by publication to
Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly
given or provided. In case by reason of the suspension of
regular mail service or by reason of any other cause it
shall be impracticable to give such notice as provided
above, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
This Indenture is subject to the Trust Indenture
Act and if any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that
is required under such Trust Indenture Act to be a part of
and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture, any
Security or any Coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, any Security or any
Coupon, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any
paying agent and their successors hereunder and the
Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and any Coupons
shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements
made or instruments entered into and, in each case,
performed in such state.
SECTION 113. Moneys of Different Currencies to be
Segregated.
The Trustee shall segregate monies, funds, and
accounts held by the Trustee hereunder in one currency (or
unit thereof) from any monies, funds or accounts in any
other currencies (or units thereof), notwithstanding any
provision herein which would otherwise permit the Trustee
to commingle such amounts.
SECTION 114. Payment to be in Proper Currency.
The following provisions of this Section 114
shall apply to the extent permitted by applicable law: In
the case of any Security payable in any particular
currency or currency unit (the "Required Currency"),
except as otherwise provided herein, therein or in or
pursuant to the related Board Resolution or supplemental
indenture or as contemplated by Section 301, the
obligation of the Company to make any payment of
principal, premium or interest thereon shall not be
discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency or currency unit
other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee
timely holding the full amount of the Required Currency
then due and payable. If any such tender or recovery is
made in other than the Required Currency, the Trustee may,
but shall not be obligated to, take such actions as it
considers appropriate to exchange such other currency or
currency unit for the Required Currency. The costs and
risks of any such exchange, including without limitation
the risks of delay and exchange rate fluctuation, shall be
borne by the Company, the Company shall remain fully
liable for any shortfall or delinquency in the full amount
of the Required Currency then due and payable and in no
circumstances shall the Trustee be liable therefor. The
Company hereby waives any defense of payment based upon
any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required
Currency by the Trustee, is less than the full amount of
Required Currency then due and payable.
SECTION 115. Language of Notices.
Any request, demand, authorization, direction,
notice, consent, election or waiver required or permitted
under this Indenture shall be in the English language,
except that, if the Company so elects, any published
notice may be in an official language of the country of
publication.
SECTION 116. Legal Holidays.
In any case where any Interest Payment Date,
Stated Maturity or Maturity of any Security shall be a
Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture,
any Security or any Coupon other than a provision in this
Indenture, any Security or Coupon that specifically states
that such provision shall apply in lieu of this Section)
payment need not be made at such Place of Payment on such
date, but may be made on the next succeeding day that is a
Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or at
the Stated Maturity or Maturity, and no interest shall
accrue on the amount payable on such date or at such time
for the period from and after such Interest Payment Date
or Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and the Coupons, if
any, to be attached thereto shall be in substantially such
form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Indenture or indenture
supplemental hereto, and may have such letters, numbers or
other marks of identification and such legends or
endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers
executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and
Coupons, if any. If temporary Securities of any series are
issued in global form as permitted by Section 304, the
form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and
Coupons, if any, of any series are established by, or by
action taken pursuant to, a Board Resolution, a copy of
the Board Resolution together with an appropriate record
of any such action taken pursuant thereto, including a
copy of the approved form of Securities or Coupons, if
any, shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Company Order contemplated
by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication
shall be in substantially the form set forth in Section 202.
Unless otherwise provided in or pursuant to this
Indenture, the Securities shall be issuable in registered
form without Coupons and shall not be issuable upon the
exercise of warrants.
The definitive Securities and Coupons, if any,
shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner,
all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons, if any.
SECTION 202. Form of Trustee's Certificate of
Authentication.
Subject to Section 610, the Trustee's certificate
of authentication shall be in substantially the following
form:
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
BANK ONE, NA
as Trustee
By
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in whole
or in part in global form, any such Security may provide
that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed
thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time
to time be reduced to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any
increase or decrease in the amount or changes in the
rights of Holders of Outstanding Securities represented
thereby, shall be made in such manner and by such Person
or Persons as shall be specified therein or in the Company
Order to be delivered pursuant to Section 303 or 304 with
respect thereto. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee shall deliver
and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304
has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in
global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate
and need not be accompanied by an Opinion of Counsel. Any
instructions by the Company with respect to a Security in
global form shall be in writing but need not comply with
Section 314(e) of the Trust Indenture Act.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to a
Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities
of any series,
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series from
all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to
Sections 304, 305, 306, 309, 403, 906, 1106, 1107 or 1203);
(3) the date or dates, or the method, if any, by
which such date or dates shall be determined, on which the
principal (and premium, if any) of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, or the method, if
any, by which such rate or rates are to be determined, the
date or dates from which such interest shall accrue, or
the method, if any, by which such date or dates shall be
determined, the Interest Payment Dates, if any, on which
such interest shall be payable and the Regular Record
Date, if any, for the interest payable on any Interest
Payment Date, whether and under what circumstances
Additional Amounts on such Securities or any of them shall
be payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve
30-day months;
(5) the Person to whom any interest on any
Registered Securities of the series shall be payable if
other than the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest
and the manner in which, or the Person to whom, any
interest on any Bearer Securities of the series shall be
payable if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature;
(6) if in addition to or other than in Chicago,
Illinois, the place or places where the principal of (and
premium, if any) and interest on or any Additional Amounts
with respect to the Securities of the series shall be
payable;
(7) whether any of such Securities are to be
redeemable at the option of the Company and, if so, the
period or periods within which or the date or dates on
which, the price or prices at which and the terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, or option of the
Company to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods
within which, the price or prices at which and the other
terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(9) the denominations in which any of such
Securities that are Registered Securities shall be
issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(10) if other than the principal amount thereof,
the portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion is to be determined;
(11) whether Bearer Securities of the series are
to be issuable and if so, whether Registered Securities
are to be issuable and whether the Bearer Securities are
to be issuable with Coupons, without Coupons or both, and
any restrictions applicable to the offer, sale or delivery
of the Bearer Securities and the terms, if any, upon which
Bearer Securities may be exchanged for Registered
Securities and vice versa;
(12) the date as of which any Bearer Securities
of the series and any temporary global Security
representing Outstanding Securities of the series shall be
dated if other than the date of original issuance of the
first Security of the series to be issued;
(13) if Bearer Securities of the series are to
be issuable, whether interest in respect of any portion of
a temporary Bearer Security in global form (representing
all of the Outstanding Bearer Securities of the series)
payable in respect of any Interest Payment Date prior to
the exchange, if any, of such temporary Bearer Security
for definitive Securities of the series shall be paid to
any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and,
in such event, the terms and conditions (including any
certification requirements) upon which any such interest
payment received by a clearing organization will be
credited to the Persons entitled to interest payable on
such Interest Payment Date;
(14) the currency of denomination of the
Securities of any series, which may be in Dollars, any
Foreign Currency or any composite currency, including but
not limited to the ECU, and, if such currency of
denomination is a composite currency other than the ECU,
the agency or organization, if any, responsible for
overseeing such composite currency;
(15) the currency or currencies in which payment
of the principal of (and premium, if any) and interest on
or any Additional Amounts with respect to the Securities
will be made, and the currency or currencies (in addition
to Dollars), if any, in which payment of the principal of
(and premium, if any) or the interest on Registered
Securities, at the election of each of the Holders
thereof, may also be payable;
(16) if the amount of payments of principal of
(and premium, if any) or, interest on or any Additional
Amounts with respect to the Securities of the series may
be determined with reference to an index based on a
currency or currencies other than that in which the
Securities are denominated or designated to be payable,
the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(17) if the payments of principal of (and
premium, if any) or the interest on or any Additional
Amounts with respect to the Securities of the series are
to be made in a Foreign Currency other than the Foreign
Currency in which such Securities are denominated, the
manner in which the exchange rate with respect to such
payments shall be determined;
(18) any deletions from, modifications of or
additions to the Events of Default set forth in Section
501 or covenants of the Company set forth in Article Ten
pertaining to the Securities of the series;
(19) the form of the Securities and Coupons, if
any, of the series;
(20) whether the Securities of such series shall
be issued in whole or in part in global form, including
Book-Entry Securities, and the Depositary for such global
Securities and, if so, (i) whether beneficial owners of
interests in any such global Security may exchange such
interest for Securities of the same series and of like
tenor and of any authorized form and denomination, and the
circumstances under which any such exchanges may occur, if
other than in the manner specified in Section 305, and
(ii) the name of the Depositary or the U.S. Depositary, as
the case may be, with respect to any global Security;
(21) the application, if any, of Section 403;
(22) the application, if any, of Section 1007;
(23) if any of such Securities are to be
issuable upon the exercise of warrants, this shall be so
established and (if established by Board Resolution) so
set forth, as well as the time, manner and place for such
Securities to be authenticated and delivered;
(24) if any of such Securities are to be
issuable in global form and are to be issuable in
definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, then the form and terms of such
certificates, documents or conditions;
(25) if there is more than one Trustee, the
identity of the Trustee and, if not the Trustee, the
identity of each Security Registrar, Paying Agent or
Authenticating Agent with respect to such Securities; and
(26) any other terms of the series of Securities
(which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities (including Coupons, if any) of any
one series shall be substantially identical except as to
Currency of payments due thereunder, denomination and the
rate or rates of interest, if any, the method or methods,
if any, by which such rate or rates are to be determined
and Maturity, the date from which interest, if any, shall
accrue and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such
Officers' Certificate or in any such indenture
supplemental hereto. All Securities of any one series need
not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for
issuances of additional Securities of such series or to
establish additional terms of such series of Securities.
If any of the terms of the series of Securities
are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officers' Certificate
setting forth the terms of the series.
SECTION 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this
Indenture, the principal of, any premium and interest on
and any Additional Amounts with respect to the Securities
shall be payable in Dollars. The Securities of each series
shall be issuable in such denominations as shall be
specified as contemplated by Section 301. In the absence
of any such provisions with respect to the Securities of
any series, the Securities of such series shall be
issuable in denominations of $1,000, if Registered
Securities, in denominations of $5,000, if Bearer
Securities, and, in the case of Registered Securities, any
integral multiple of the applicable denomination.
SECTION 303. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of
the Board, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by
the signature of its Secretary or one of its Assistant
Secretaries or its Treasurer or one of its Assistant
Treasurers. The Coupons, if any, shall be executed on
behalf of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or one of its
Vice Presidents attested by its Secretary or any Assistant
Secretary or its Treasurer or one of its Assistant
Treasurers. The signature of any of these officers on the
Securities (and Coupons, if any) may be manual or facsimile.
Securities (and Coupons, if any) bearing the
manual or facsimile signatures of individuals who were at
any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
authentication and delivery of such Securities (and
Coupons, if any) or did not hold such offices at the date
of such Securities (and Coupons, if any).
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Securities (with or without Coupons) 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 the Trustee in accordance
with the Company Order shall authenticate and deliver such
Securities. In authenticating such Securities, and
accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee
shall be entitled to receive, and, subject to Sections
315(a) through 315(d) of the Trust Indenture Act, shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating to the
effect that:
(a) the form or forms of such Securities
and Coupons, if any, have been established in conformity
with the provisions of this Indenture;
(b) the terms of such Securities and
Coupons, if any, have been established in conformity with
the provisions of this Indenture;
(c) the terms of the Securities and
Coupons, if any, have been established in accordance with
the terms of this Indenture and all conditions precedent
provided for in the Indenture relating to the Trustee's
authentication and delivery of the Securities and Coupons,
if any, will have been complied with; and
(d) as to such other matters as the
Trustee may reasonably request; and
(ii) an Officers' Certificate stating that, all
conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto,
have been complied with and to the best knowledge of the
Persons executing such certificate, no event which is, or
after notice or lapse of time would become, an Event of
Default with respect to any of the Securities shall have
occurred and be continuing.
The Trustee shall have the right to decline to
authenticate and deliver such Securities if the Trustee,
being advised by counsel, determines that such action may
not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee,
or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action
would expose the Trustee to personal liability to existing
Holders or would adversely affect the Trustee's own
rights, duties or immunities under this Indenture or
otherwise.
The Trustee shall not be required to authenticate
Securities denominated in a coin or currency (or unit
including a coin or currency) other than that of the
United States of America if the Trustee reasonably
determines that such Securities impose duties or
obligations on the Trustee which the Trustee is not able
or reasonably willing to accept; provided that the
Trustee, upon a Company Request, will resign as Trustee
with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such
Securities, and will comply with the request of the
Company to execute and deliver a supplemental indenture
appointing a successor Trustee pursuant to Section 901.
If all the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver
an Opinion of Counsel and an Officers' Certificate at the
time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be
delivered at or before the time of issuance of the first
Security of such series.
If the Company shall establish pursuant to
Section 301 that the Securities of a series are to be
issued in whole or in part in global form, then the
Company shall execute and the Trustee shall, in accordance
with this Section and the Company Order with respect to
such series, authenticate and deliver one or more
Securities in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Securities of such
series to be represented by such global Security or
Securities, (ii) shall be registered, if in registered
form, in the name of the Depositary for such Book-Entry
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)
where such Depositary is The Depository Trust Company,
shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be
transferred 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" or to such other effect as the Depositary and
the Trustee may agree.
Each Depositary designated pursuant to Section
301 for a Book-Entry Security in registered form must, at
the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered
under the Exchange Act and any other applicable statute or
regulation. The Trustee shall have no responsibility to
determine if the Depositary is so registered. Each
Depositary shall enter into an agreement with the Trustee
governing their respective duties and rights with regard
to Book-Entry Securities.
Each Security shall be dated the date of its
authentication, except that each Bearer Security,
including any Bearer Security in global form, shall be
dated as of the date specified or contemplated by Section
301.
No Security or Coupon appertaining thereto shall
be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication
substantially in the form provided for herein duly
executed by the Trustee by manual signature of one of its
authorized signatories, 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. Except as permitted by Section 306 or 307,
the Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant Coupons then matured have
been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and upon receipt
of a Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of
the tenor and form, with or without Coupons of the
definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such
Securities may determine, as conclusively evidenced by
their execution of such Securities and Coupons, if any.
Such temporary Securities may be in global form.
Except in the case of temporary Securities in
global form, each of which shall be exchanged in
accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of
definitive Securities of the same series and containing
terms and provisions that are identical to those of any
temporary Securities, the temporary Securities of such
series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of
such series at the office or agency of the Company
pursuant to Section 1002 in a Place of Payment for such
series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities
of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary
Registered Security; and provided, further, that no
definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security unless the Trustee shall
have received from the person entitled to receive the
definitive Bearer Security a certificate substantially in
the form approved in the Board Resolutions relating
thereto and such delivery shall occur only outside the
United States. 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 except as otherwise specified as
contemplated by Section 301 with respect to the payment of
interest on Bearer Securities in temporary form.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office
or agency of the Company maintained pursuant to Section
1002 in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered
Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as
herein provided. In the event that the Trustee shall not
be the Security Registrar, it shall have the right to
examine the Security Register at all reasonable times. In
the event that the Trustee shall cease to be Security
Registrar with respect to a series of Securities, it shall
have the right to examine the Security Register for such
series at all reasonable times.
Upon surrender for registration of transfer of
any Registered Security of any series at the office or
agency maintained pursuant to Section 1002 in a Place of
Payment for that series, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal
amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered
Securities of any series (except a Book-Entry Security
representing all or a portion of the Securities of such
series) may be exchanged for other Registered Securities
of the same series, of any authorized denominations and of
a like aggregate principal amount, upon surrender of the
Registered Securities to be exchanged at such office or
agency. Registered Securities may not be exchanged for
Bearer Securities. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange
is entitled to receive.
At the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities (if
the Securities of such series are issuable in registered
form) or Bearer Securities (if Bearer Securities of such
series are issuable in more than one denomination and such
exchanges are permitted by such series) of the same
series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured Coupons
in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default,
such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of
such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and
the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office
or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security
of any series is surrendered at any such office or agency
in exchange for a Registered Security of the same series
after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall
be returned to the person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case
may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Notwithstanding any other provision of this
Section, unless and until it is exchanged in whole or in
part for Securities in certificated form, a Security in
global form 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.
If 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 303, the Company shall appoint a successor
Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such
series is not appointed by the Company within 90 days
after the issuer receives such notice or becomes aware of
such ineligibility, the Company's election pursuant to
Section 301(20) shall no longer be effective with respect
to the Securities of such series and the Company shall
execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of certificated
Securities of such series of like tenor, shall
authenticate and deliver Securities of such series in
certificated form in an aggregate principal amount equal
to the principal amount of the Security or Securities in
global form representing such series in exchange for such
Security or Securities in global form.
The Company may at any time and in its sole
discretion determine that the Securities of any series
issued in the form of one or more global Securities shall
no longer be represented by such global Security or
Securities. In such event the Company shall execute, and
the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver,
Securities of such series in certificated form and in an
aggregate principal amount equal to the principal amount
of the Security or Securities in global form representing
such series in exchange for such Security or Securities in
global form.
If specified by the Company pursuant to Section
301 with respect to a series of Securities, the Depositary
for such series of Securities may surrender a global
Security of such series in exchange in whole or in part
for Securities of such series in certificated form 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,
(i) to each Person specified by
such Depositary a new certificated
Security or Securities of the same series
of like tenor, of any authorized
denomination as requested by such Person
in aggregate principal amount equal to and
in exchange for such Person's beneficial
interest in the global Security; and
(ii) to such Depositary a new
global security of like tenor in a
denomination equal to the difference, if
any, between the principal amount of the
surrendered global Security and the
aggregate principal amount of certificated
Securities delivered to Holders thereof.
In any exchange provided for in any of the
preceding three paragraphs, the Company shall execute and
the Trustee shall authenticate and deliver Securities in
certificated form in authorized denominations.
Upon the exchange of a global Security for
Securities in certificated form, such global Security
shall be cancelled by the Trustee. Unless expressly
provided with respect to the Securities of any series that
such Security may be exchanged for Bearer Securities,
Securities issued in exchange for a Book-Entry Security
pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for
such Book-Entry 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.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitling the Holders thereof to the same benefits under
this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or
surrendered for registration of transfer or for exchange
or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any
registration of transfer or exchange or redemption of
Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any
transfer.
Except as otherwise provided in or pursuant to
this Indenture, the Company shall not be required (i) to
issue, register the transfer of or exchange Securities of
any series for a period of 15 days before the selection of
any Securities of that series for redemption, or (ii) to
register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being
redeemed in part, or (iii) to exchange any Bearer Security
so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for
redemption with written instruction for payment consistent
with the provisions of this Indenture or (iv) to issue,
register the transfer of or exchange any Security which,
in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or Security with a
mutilated Coupon appertaining to it is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security with Coupons corresponding to the Coupons, if
any, appertaining to the surrendered Security of the same
series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding with Coupons
corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or Security
with a destroyed, lost or stolen Coupon and (ii) such
security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the
Trustee that such Security or Coupon has been acquired by
a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security a new
Security of the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding with Coupons corresponding
to the Coupons, if any, appertaining to the destroyed,
lost or stolen Security.
Notwithstanding the foregoing provisions of this
Section 306, in case any such mutilated, destroyed, lost
or stolen Security or Coupon has become or is about to
become due and payable, the Company in its discretion may,
instead of issuing a new Security or Coupon, pay such
Security or Coupon; provided, however, that payment of
principal of and any premium or interest on or any
Additional Amounts with respect to any Bearer Securities
shall, except as otherwise provided in Section l002, be
payable only at an office or agency located outside the
United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer
Securities and any Additional Amounts with respect to such
interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series with its
Coupons, if any, issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security, or in exchange
for a Security to which a destroyed, lost or stolen Coupon
appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its Coupons, if
any, or the destroyed, lost or stolen Coupon, shall be at
any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and
proportionately with any and all other Securities of that
series and their Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or
supplemented pursuant to this Indenture with respect to
particular Securities or generally, are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 307. Payment of Interest and Certain Additional
Amounts; Rights to Interest and Certain
Additional Amounts Preserved.
Unless otherwise provided as contemplated by
Section 301, interest on and any Additional Amounts with
respect to any Registered Security which is payable, and
is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest. Unless otherwise provided in or
pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after
the close of business (at an Office or Agency for such
Security) on any Regular Record Date therefor and before
the opening of business (at such Office or Agency) on the
next succeeding Interest Payment Date therefore, such
Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date and interest shall
not be payable on such Interest Payment Date in respect of
the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this
Indenture.
Any interest on and any Additional Amounts with
respect to any Registered Security of any series which is
payable, but is not punctually paid or duly provided for,
on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of
the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of Money 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 is provided in this Clause
(1). Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities
of such Series at his address as it appears in the
Security Register, not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion,
in the name and at the expense of the Company, cause a
similar notice to be published at least once in an
Authorized Newspaper of general circulation in the Borough
of Manhattan, The City of New York, but such publication
shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor
Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable
pursuant to the following Clause (2). In case a Bearer
Security is surrendered at the Office or Agency for such
Security in exchange for a Registered Security after the
close of business at such Office or Agency on any Special
Record Date and before the opening of business at such
Office or Agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such proposed
date of payment and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any
Defaulted Interest on the Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after 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.
At the option of the Company, interest on
Registered Securities of any series that bear interest may
be paid (i) by mailing a check to the address of the
Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer to an
account maintained by the person entitled thereto as
specified in the applicable Security Register.
Notwithstanding the above, except as otherwise
specified with respect to a series of Securities in
accordance with the provisions of Section 301, a Holder of
$10,000,000 or more in aggregate principal amount of
Securities of the same series having the same Interest
Payment Date shall, upon written request received by the
Trustee prior to the Regular Record Date in respect of an
interest payment, or the date which is 15 days before the
Stated Maturity or date of redemption of the principal of
(and premium, if any, on) the Securities, as the case may
be, be entitled to receive payments of principal of (and
premium, if any) and interest by wire transfer to an
account maintained by such Holder with a bank located in
the United States; provided, however, that no payment of
principal (and premium, if any) will be made without prior
presentment and surrender of the Securities.
Subject to the foregoing provisions of this
Section, each Security or Coupon, if any, delivered under
this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security or Coupon,
if any, shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other
Security or Coupon.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is
registered as the owner of such Registered Security for
the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on,
and any Additional Amounts with respect to, such
Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the
contrary.
No Holder of any beneficial interest in any
global Security held on its behalf by the Depositary shall
have any rights under this Indenture with respect to such
global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such global Security for all
purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial
ownership interest of a global Security or for
maintaining, supervising or reviewing any records relating
to such beneficial ownership interest.
The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer
Security and the bearer of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purpose of
receiving payment thereof or on account thereof and for
all other purposes whatsoever, whether or not such Bearer
Security or Coupon be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any
global Security held on its behalf by the Depositary shall
have any rights under this Indenture with respect to such
global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such global Security for all
purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial
ownership interest of a global Security or for
maintaining, supervising or reviewing any records relating
to such beneficial ownership interest.
SECTION 309. Cancellation.
All Securities and Coupons surrendered for
payment, redemption, registration of transfer or exchange
or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities and
Coupons so delivered shall be promptly cancelled by the
Trustee. No Securities or Coupons shall be authenticated
in lieu of or in exchange for any Securities or Coupons
cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities and
Coupons held by the Trustee shall be destroyed by the
Trustee, unless by a Company Order the Company directs
their return to it, and a certificate evidencing such
destruction shall be delivered to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease
to be of further effect with respect to Securities of any
series (except as to any surviving rights of registration
of transfer or exchange of Securities of such series and
replacement of lost, stolen or mutilated Securities of
such series herein expressly provided for) and any Coupons
appertaining thereto, and the Trustee, at the expense of
the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture
with respect to such series, when
(1) either
(A) all Securities of such series
theretofore authenticated and delivered
and all Coupons appertaining thereto
(other than (i) Coupons appertaining to
Bearer Securities of such series
surrendered in exchange for Registered
Securities and maturing after such
exchange, surrender of which is not
required or has been waived as provided in
Section 305, (ii) Securities of such
series and Coupons which have been
destroyed, lost or stolen and which have
been replaced or paid as provided in
Section 306, (iii) Coupons appertaining to
Bearer Securities of such series called
for redemption and maturing after the
relevant Redemption Date, surrender of
which has been waived as provided in
Section 1106 and (iv) Securities of such
series and Coupons for whose payment Money
has theretofore been deposited in trust or
segregated and held in trust by the
Company and thereafter repaid to the
Company or discharged from such trust, as
provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities and
Coupons of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of
the Company, are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Securities and Coupons of such series not theretofore
delivered to the Trustee for cancellation, for principal
of (and premium, if any) and interest on, and any
Additional Amounts with respect to such Securities and
Coupons to the date of such deposit (in the case of
Securities and Coupons of such series which have become
due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more
series hereunder, the Trustee shall be required to execute
an instrument acknowledging satisfaction and discharge of
this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if
the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the
Trustee under Section 605 and, if Money shall have been
deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003,
shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph
of Section 1003, all Money and Government Obligations
deposited with the Trustee pursuant to Sections 401 and
403 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and
Coupons, if any, and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the
principal (and premium, if any), interest and Additional
Amounts for whose payment such Money and Government
Obligations have been deposited with or received by the
Trustee; but such Money and Government Obligations need
not be segregated from other funds except to the extent
required by law.
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of Any Series.
If this Section is specified, as contemplated by
Section 301, to be applicable to Securities and Coupons,
if any, of any series, at the Company's option, either
(a) the Company will be deemed to have
been Discharged (as defined below) from its obligations
with respect to Securities and Coupons, if any, of such
series or
(b) the Company will cease to be under
any obligation to comply with any term, provision or
condition set forth in (i) Article Eight and Section 1006
or (ii) the terms, provisions or conditions of such series
specified pursuant to Section 301 (provided, however, that
the Company may not cease to comply with any obligations
as to which it may not be Discharged pursuant to the
definition of "Discharged"), if, in the case of (a) and
(b), with respect to the Securities and Coupons, if any,
of such series on the 91st day after the applicable
conditions set forth below in (x) and either (y) or (z)
have been satisfied:
(x) (1) the Company has paid or
caused to be paid all other sums payable
with respect to the Outstanding Securities
and Coupons, if any, of such series (in
addition to any required under (y) or
(z)); and
(2) the Company has
delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel,
each stating that all conditions precedent
herein provided for relating to the
satisfaction and discharge of the entire
indebtedness on all Outstanding Securities
and Coupons, if any, of any such series
have been complied with;
(y) (1) the Company shall have
deposited or caused to be deposited
irrevocably with the Trustee as a trust
fund specifically pledged as security for,
and dedicated solely to, the benefit of
the Holders of the Securities and Coupons,
if any, of such series (i) an amount (in
such currency or currency unit in which
the Outstanding Securities and Coupons, if
any, of such series are payable) or (ii)
U.S. Government Obligations (as defined
below) or, in the case of Securities and
Coupons, if any, denominated in a Foreign
Currency, Foreign Government Securities
(as defined below) denominated in such
Foreign Currency, which through the
payment of interest and principal in
respect thereof in accordance with their
terms will provide, not later than the due
date of any payment of principal
(including any premium), and interest, if
any, under the Securities and Coupons, if
any, of such series, Money in an amount or
(iii) a combination of (i) and (ii)
sufficient (in the opinion with respect to
(ii) and (iii) of a nationally recognized
firm of independent public accountants
expressed in a written certification
thereof delivered to the Trustee) to pay
and discharge each installment of
principal of (including any premium), and
interest, if any, on, and any Additional
Amounts with respect to the Outstanding
Securities and Coupons, if any, of such
series on the dates such installments of
interest or principal are due;
(2) (i) no Event of Default or
event (including such deposit) which with
notice or lapse of time or both would
become an Event of Default shall have
occurred and be continuing on the date of
such deposit, (ii) no Event of Default as
defined in clause (6) or (7) of Section
501, or event which with notice or lapse
of time or both would become an Event of
Default under either such clause, shall
have occurred within 90 days after the
date of such deposit and (iii) such
deposit and the related intended
consequence under (a) or (b) will not
result in any default or event of default
under any material indenture, agreement or
other instrument binding upon the Company
or any Subsidiary or any of their
properties; and
(3) the Company shall have
delivered to the Trustee
(A) an Opinion of Counsel to the
effect that Holders of the Securities and
Coupons, if any, of such series will not
recognize income, gain or loss for Federal
income tax purposes as a result of the
Company's exercise of its option under
this Section 403 and will be subject to
Federal income tax in the same amount, in
the same manner and at the same times as
would have been the case if such option
had not been exercised; and
(B) if the Securities of such
series are then listed on any exchange, an
Opinion of Counsel that the Securities of
such series shall not be delisted as a
result of the exercise of this option;
(z) the Company has properly
fulfilled such other means of satisfaction
and discharge as is specified, as
contemplated by Section 301, to be
applicable to the Securities and Coupons,
if any, of such series.
Any deposits with the Trustee referred to in
clause (y)(1) above shall be irrevocable and shall be made
under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. If any Outstanding
Securities and Coupons, if any, of such series are to be
redeemed prior to their Stated Maturity, whether pursuant
to any mandatory redemption provisions or in accordance
with any mandatory sinking fund requirement, the
applicable escrow trust agreement will provide therefor
and the Company will make such arrangements as are
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense,
of the Company.
"Discharged" means that the Company will be
deemed to have paid and discharged the entire indebtedness
represented by, and obligations under, the Securities and
Coupons, if any, of the series as to which this Section is
specified as applicable as aforesaid and to have satisfied
all the obligations under this Indenture relating to the
Securities and Coupons, if any, of such series (and the
Trustee, at the expense of the Company, will execute
proper instruments acknowledging the same), except (A) the
rights of Holders thereof to receive, from the trust fund
described in clause (y)(1) above, payments of the
principal of, premium and the interest, if any, on such
Securities and Coupons, if any, when such payments are
due, (B) the Company's obligations with respect to such
Securities and Coupons, if any, under Sections 305 and 306
(insofar as applicable to Securities of such series), 402,
1002 and 1003 (last paragraph only) and the Company's
obligations to the Trustee under Sections 605 and 606 and
(C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder, will survive such discharge. The
Company will reimburse the trust fund for any loss
suffered by it as a result of any tax, fee or other charge
imposed on or assessed against deposited U.S. Government
Obligations or Foreign Government Securities, as the case
may be, or any principal, premium or interest paid on such
Obligations, and, subject to the provisions of Section
605, will indemnify the Trustee against any claims made
against the Trustee in connection with any such loss.
"Foreign Government Securities" as used in
Section 403 means, with respect to Securities and Coupons,
if any, of any series that are denominated in a Foreign
Currency, securities that are (i) direct obligations of
the government that issued such currency for the payment
of which obligations 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 such
government (the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of such
government) which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the
issuer thereof and will also include a depository receipt
issued by a bank or trust company as custodian with
respect to any such Foreign Government Obligation or a
specified payment of interest on or principal of any such
Foreign Government Obligation held by such custodian for
the account of the holder of a depository receipt;
provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any
amount received by the custodian in respect of the Foreign
Government Obligations or the specific payment of interest
on or principal of the Foreign Government Obligation
evidenced by such depository receipt.
"U.S. Government Obligations" means securities
that are (i) direct obligations of the United States of
America 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 of America the timely payment of
which is unconditionally guaranteed as a full faith and
credit obligation of the United States of America, which,
in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof and will
also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S.
Government Obligation or a specified payment of interest
on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by
law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligations or
the specific payment of interest on or principal of the
U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with
respect to Securities of any series, means any one of the
following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon
or any Additional Amounts payable in respect of any
Security of that series when such interest becomes or such
Additional Amounts become due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of
(or premium, if any, on) any Security of that series at
its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of
that series, and continuance of such default for a period
of 30 days; or
(4) default in the performance, or breach, of
any covenant or warranty of the Company in this Indenture
or the Securities of that series (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for
the benefit of series of Securities other than that
series), and continuance of such default or breach for a
period of 90 days after there has been given, by
registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default"
hereunder; or
(5) if any event of default as defined in any
mortgage, indenture or instrument under which there may be
issued, or by which there may be secured or evidenced, any
indebtedness of the Company for money borrowed, whether
such indebtedness now exists or shall hereafter be
created, shall happen and shall result in such
indebtedness in principal amount in excess of $10,000,000
becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable,
and such acceleration shall not be rescinded or annulled,
or such indebtedness shall not have been discharged,
within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice
specifying such event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or
to cause such indebtedness to be discharged and stating
that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in
respect of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a
period of 90 consecutive days, or
(7) the commencement by the Company of a
voluntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it
to the entry of a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such
action; or
(8) if Section 1007 is applicable to the
Securities of that series, the Event of Default specified
in Section 1007; or
(9) any other Event of Default provided with
respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities
of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the
Holders of not less than 331/3% in principal amount of the
Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of
acceleration with respect to Securities of any series has
been made and before a judgment or decree for payment of
the Money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities
of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of
any interest on and Additional Amounts
with respect to all Securities of that
series and any Coupons appertaining thereto;
(B) the principal of (and premium,
if any, on) any Securities of that series
which have become due otherwise than by
such declaration of acceleration and
interest thereon and any Additional
Amounts with respect thereto at the rate
or rates prescribed therefor in such
Securities;
(C) to the extent that payment of
such interest or Additional Amounts is
lawful, interest upon overdue installments
of any interest and Additional Amounts at
the rate or rates prescribed therefor in
such Securities; and
(D) all sums paid or advanced by
the Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to
Securities of that series, other than the non-payment of
the principal of (and premium, if any,) and interest on,
and any Additional Amounts with respect to Securities of
that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any
installment of interest on or any Additional Amounts with
respect to any Security or Coupon, if any, when such
interest or Additional Amounts become due and payable and
such default continues for a period of 30 days; or
(2) default is made in the payment of the
principal of (or premium, if any, on) any Security at the
Maturity thereof;
the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities
or Coupons, if any, the whole amount of Money then due and
payable on such Securities and any Coupons for principal
(and premium, if any) and interest and, to the extent that
payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any)
and on any overdue interest and Additional Amounts, at the
rate or rates prescribed therefor in such Securities or
Coupons, if any, and, in addition thereto, such further
amount of Money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay the Money and is
required to pay the Trustee pursuant to the preceding
paragraph forthwith upon the demand of the Trustee, the
Trustee in its own name and as trustee of an express
trust, may institute a judicial proceeding for the
collection of the Money so due and unpaid and may
prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other
obligor upon such Securities or Coupons, if any, and
collect the Money adjudged or decreed to be paid in the
manner provided by law out of the property of the Company
or any other obligor upon such Securities or Coupons, if
any, wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such series
or Coupons, if any, by such appropriate judicial
proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or such
other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the
payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in
the Securities of such series, of the principal and any
premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining
thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of
Securities or any Coupons allowed in such judicial
proceeding; and
(ii) to collect and receive any Monies or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder of Securities or any Coupons to make such payments
to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the
Holders of Securities or any Coupons, to pay to the
Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due
the Trustee under Section 605.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder of a Security or any
Coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or Coupons or the
rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claims under this
Indenture or any of the Securities or Coupons may be
prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the
production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust,
and any recovery or judgment shall, after provision for
the payment of the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and
counsel, and for any other amounts due to the Trustee
under Section 605, be for the ratable benefit of the
Holders of the Securities or any Coupons in respect of
which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any Money collected by the Trustee pursuant to
this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the
distribution of such Money on account of principal (or
premium, if any) or interest or Additional Amounts, upon
presentation of the Securities or Coupons, or both, as the
case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the
Trustee and any predecessor Trustee under Section
605; and
Second: To the payment of the amounts then due
and unpaid for principal of (and premium, if any),
interest and Additional Amounts on the Securities
and any Coupons in respect of which or for the
benefit of which such Money has been collected,
ratably, without preference or priority of any
kind, according to the amounts due and payable on
such Securities and any Coupons for principal (and
premium, if any) and interest and Additional
Amounts, respectively; and
Third: The balance, if any, to the Person or
Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any
Coupons appertaining thereto shall have any right to
institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default
with respect to the Securities of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses
and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60 day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series; it being
understood and intended that no one or more of such
Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this
Indenture or any Security to affect, disturb or prejudice
the rights of any other of such Holders or Holders of
Securities of any other series, or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts.
Notwithstanding any other provision in this
Indenture, the Holder of any Security or Coupon shall have
the right, which is absolute and unconditional, to receive
payment of the principal of, any premium and (subject to
Sections 305 and 307) interest on, and any Additional
Amounts with respect to such Security or payment of such
Coupon, as the case may be, on the respective Stated
Maturity or Maturities therefor specified in such Security
or Coupon (or, in the case of redemption, on the
Redemption Date or, in the case of repayment at the option
of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and to
institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the
Company, the Trustee and each such Holder shall be
restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies
of the Trustee and each such Holder shall continue as
though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or
stolen Securities or Coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to
be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder of any Security or Coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by
such Holder, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of
the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series and any
Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture;
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction; and
(3) such direction is not unduly prejudicial to
the rights of the other Holders of Securities of such
series not joining in such action.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series and any Coupons waive any past default
hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or
premium, if any) or interest on any Security of such
series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
SECTION 515. Judgment Currency.
The following provisions of this Section 515
shall apply to the extent permissible under applicable
law: Judgments in respect of any obligations of the
Company under any Securities or Coupons, if any, of any
series shall be rendered in the currency or currency unit
in which such Securities or Coupons are payable. If for
the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or
under any Security or Coupon, it shall become necessary to
convert into any other currency or currency unit any
amount in the currency or currency unit due hereunder or
under such Security or Coupon, then such conversion shall
be made at the Conversion Rate (as defined below) as in
effect on the date the Company shall make payment to any
person in satisfaction of such judgment. If pursuant to
any such judgment, conversion shall be made on a date
other than the date payment is made and there shall occur
a change between such Conversion Rate and the Conversion
Rate as in effect on the date of payment, the Company
agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is the amount in
such other currency or currency unit which, when converted
at the Conversion Rate as in effect on the date of payment
or distribution, is the amount then due hereunder or under
such Security or Coupon. Any amount due from the Company
under this Section 515 shall be due as a separate debt and
is not to be affected by or merged into any judgment being
obtained for any other sums due hereunder or in respect of
any Security or Coupon so that in any event the Company's
obligations hereunder or under such Security or Coupon
will be effectively maintained as obligations in such
currency or currency unit. In no event, however, shall the
Company be required to pay more in the currency or
currency unit due hereunder or under such Security or
Coupon at the Conversion Rate as in effect when payment is
made than the amount of currency or currency unit stated
to be due hereunder or under such Security or Coupon.
For purposes of this Section 515, "Conversion
Rate" shall mean the spot rate as determined by the
Company at which in accordance with normal banking
procedures the currency or currency unit into which an
amount due hereunder or under any Security or Coupon is to
be converted could be purchased with the currency or
currency unit due hereunder or under any Security or
Coupon, at the option of the Company from major banks
located in New York, London or any other principal market
for such purchased currency or currency unit.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture
Act:
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order (in each case, other than
delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication
and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be required to
expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it;
(i) prior to the occurrence of an Event of
Default of which it has or is deemed to have notice
hereunder, and after the curing or waiver of any Event of
Default which may have occurred, the Trustee undertakes to
perform such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(j) the Trustee shall not be required to take
notice of or be deemed to have notice of any default or
Event of Default hereunder unless a Responsible Officer of
the Trustee has actual knowledge thereof, and in the
absence of any such notice, the Trustee may conclusively
assume that no such default or Event of Default exists.
SECTION 602. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the
Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or
the sufficiency of this Indenture or of the Securities or
the Coupons, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations
hereunder. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 603. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the
Trustee or the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities or
Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company
with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 604. Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability
for interest on any Money received by it hereunder except
as otherwise agreed with the Company.
SECTION 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for,
and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves
against any claim or liability in connection with the
exercise or performance of any of their powers or duties
hereunder.
As security for the performance of the
obligations of the Company under this Section, the Trustee
shall have a lien prior to the Securities of any series
upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the
payment of principal of, and premium or interest on or any
Additional Amounts with respect to Securities or any
Coupons appertaining thereto.
The obligations of the Company under this Section
605 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture.
SECTION 606. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee pursuant to Section 607.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by giving
written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section
607 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to
comply with Section 310(b) of the Trust
Indenture Act after written request
therefor by the Company or by any Holder
of a Security of such series who has been
a bona fide Holder of a Security of such
series for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 310(a) of the Trust
Indenture Act and shall fail to resign
after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become
incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the
Trustee or of its property shall be
appointed or any public officer shall take
charge or control of the Trustee or of its
property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) any
Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or
Trustees.
(e) if the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those
series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time
there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 607. If, within
one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the
applicable requirements of Section 607, become the
successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted
appointment in the manner required by Section 607, any
Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series in the manner provided in Section 105. Each notice
shall include the name of the successor Trustee with
respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 607. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder
of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on the request of
the Company or the successor Trustee, all property and
Money held by such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all
property and Money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any,
provided for in Section 605.
(b) In case of the appointment hereunder
of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that
no Trustee shall be responsible for any notice given to,
or received by, or any act or failure to act on the part
of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and Money held by
such retiring Trustee hereunder with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor
Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under
the Trust Indenture Act.
SECTION 608. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
that is a Corporation permitted by the Trust Indenture Act
to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at
any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610. Appointment of Authenticating Agent.
The Trustee may appoint one or more
Authenticating Agents acceptable to the Company with
respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original
issue, exchange, registration of transfer, partial
redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to
the Company and, except as provided in or pursuant to this
Indenture, shall at all times be a corporation that would
be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture
Act, is authorized under applicable law and by its charter
to act as an Authenticating Agent and has a combined
capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, provided
such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Company. Upon
receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company and shall (i) mail written notice of such
appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series
with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security
Register, and (ii) if Securities of the series are issued
as Bearer Securities, publish notice of such appointment
at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its
principal office if such office is located outside the
United States. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay each Authenticating
Agent from time to time reasonable compensation for its
services under this Section. If the Trustee makes such
payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 605.
The provisions of Sections 308, 602 and 603 shall
be applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with
respect to one or more series of Securities pursuant to
this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
BANK ONE, NA
As Trustee
By
As Authenticating Agent
By
Authorized Signatory
If all of the Securities of any series may not be
originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon
original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so
requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by
the Company), shall appoint in accordance with this
Section an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to
such series of Securities.
SECTION 611. Notice of Defaults.
The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of
any series, mail to all Holders of Securities of that
series entitled to receive reports pursuant to Section
703, notice of all defaults with respect to that series
known to the Trustee, unless such defaults have been cured
before the giving of such notice; provided, however, that,
except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the
Securities of such series or in the making of any sinking
fund payment with respect to such series, the Trustee
shall be protected in withholding such notice if and so
long as the Board of Directors or Responsible Officers of
the Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of
Securities of such series. For the purpose of this Section
the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
In accordance with Section 312(a) of the Trust
Indenture Act, the Company shall furnish or cause to be
furnished to the Trustee
(a) semi-annually with respect to Securities
of each series on May 15 and November 15 of each year or
upon such other dates as are set forth in or pursuant to
the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case in such form
as the Trustee may reasonably require, of the names and
addresses of Holders as of not more than 15 days prior to
the applicable date, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the receipt by
the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to
the time such list is furnished,
provided, however, that so long as the Trustee is the
Security Registrar no such list shall be required to be
furnished.
SECTION 702. Preservation of Information;
Communications to Holders.
The Trustee shall comply with the obligations
imposed upon it pursuant to Section 312 of the Trust
Indenture Act.
Every Holder of Securities or Coupons, by
receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Trustee, any
Paying Agent or any Security Registrar shall be held
accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders
of Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the first May 15 following the first
issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of such May
15 with respect to any of the events specified in such
Section 313(a) which may have occurred since the later of
the immediately preceding May 15 and the date of this
Indenture.
(b) The Trustee shall transmit the reports
required by Section 313(b) of the Trust Indenture Act at
the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by
Sections 313(c) and 313(d) of the Trust Indenture Act.
The Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company, pursuant to Section 314(a) of the
Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after
the Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe)
which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of
such Sections, then the Company shall file with the
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities
exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in
this Indenture, as may be required by such rules and
regulations;
(3) transmit to the Holders of the Securities,
within 30 days after the filing thereof with the Trustee,
in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) or (2) of this
Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(4) furnish to the Trustee, not less often than
annually, a brief certificate from the principal executive
officer, principal financial officer or principal
accounting officer as to his or her knowledge of the
Company's compliance with all the conditions and covenants
under this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER OR SALE
SECTION 801. Consolidation, Merger or Sale.
Nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger
of the Company with or into any other Person or Persons
(whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company
or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or
lease of the property of the Company as an entirety or
substantially as an entirety, to any other Person (whether
or not affiliated with the Company); provided, however, that:
(a) in case the Company shall consolidate with
or merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to
any Person, the entity formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a Corporation organized and existing
under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time
there is more than one Trustee) supplemental hereto,
executed and delivered by the successor Person to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium, if any,
and interest on and any Additional Amounts with respect to
all the Securities and the performance of every other
covenant of this Indenture on the part of the Company to
be performed or observed;
(b) immediately after giving effect to such
transaction, no event which, after notice or lapse of
time, would become an Event of Default, shall have
occurred and be continuing; and
(c) each of the Company and the successor
Person shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease
and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or
merger by the Company into any other Person or any
conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of
all obligations and covenants under this Indenture, the
Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person
to the Company and the assumption by any such successor of
the covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
(3) to add any additional Events of Default with
respect to all or any series of Securities;
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in bearer
form, registrable or not registrable as to principal, and
with or without interest coupons or to provide for
uncertificated (commonly known as "book entry") Securities
on terms satisfactory in substance to the Trustee;
(5) to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of, any premium
or interest on or any Additional Amounts with respect to
Securities, to permit Registered Securities to be
exchanged for Bearer Securities, to permit Bearer
Securities to be exchanged for Bearer Securities of other
authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided
any such action shall not aversely affect the interests of
the Holders of Securities of any series or any Coupons
appertaining thereto in any material respect;
(6) to change or eliminate any of the provisions
of this Indenture, provided that any such change or
elimination shall become effective only when there is no
Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled
to the benefit of such provision;
(7) to secure the Securities;
(8) to establish the form or terms of Securities
of any series and any Coupons appertaining thereto as
permitted by Sections 201 and 301;
(9) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to add
to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 607(b);
(10) if allowed without penalty under applicable
laws and regulations, to permit payment in the United
States of America (including any of the states and the
District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Bearer Securities
or Coupons, if any;
(11) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining
thereto in any material respect;
(12) to add to, delete from or revise the
conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth; or
(13) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge of any series
of Securities pursuant to Article Four; provided that any
such action shall not aversely affect the interests of any
Holder of a Security of such series and any Coupons
appertaining thereto or any other Security or Coupon in
any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than
a majority in principal amount of the Securities
Outstanding of each series affected by such supplemental
indenture, by Act of such Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no
supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal
of, or any installment of principal of or interest on any
Additional Amounts with respect to, any Security, or
reduce the principal amount thereof or the rate of
interest thereon or any Additional Amounts with respect
thereto, or any premium payable upon the redemption
thereof or otherwise, or reduce the amount of the
principal of an Original Issue Discount Security that
would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant
to Section 504, or adversely affect the right of repayment
at the option of any Holder as contemplated by Article
Thirteen, or change the Place of Payment, or change the
coin or currency in which the principal of, any premium or
the interest on, or any Additional Amounts with respect
to, any Security is payable, or impair the right to
institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the
case of repayment at the option of the Holder, on or after
the date for repayment), or
(2) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce
the requirements of Section 1504 for quorum or voting, or
(3) change any obligation of the Company to
maintain an office or agency in the places and for the
purposes specified in Section 1002, or
(4) modify any of the provisions of this Section
902, Section 513, or Section 1008, except to increase any
such percentage or to provide with respect to any
particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the
aggregate principal amount of Outstanding Securities of
such series (which provision may be made pursuant to
Section 301 without the consent of any Holder) or to
provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes
in the references to "the Trustee" and concomitant changes
in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 607(b) and
901(9), or
(5) modify any of the provisions of Section 1007.
For the purposes of this Section 902, if the
Securities of any series are issuable upon the exercise of
warrants, any holder of an unexercised and unexpired
warrant with respect to such series shall not be deemed to
be a Holder of Outstanding Securities of such series in
the amount issuable upon the exercise of such warrants.
A supplemental indenture which changes or
eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or
which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the
additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers'
Certificate each stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the
Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities, including any Coupons, of any series
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so
determine, new Securities including any Coupons of any
series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any Coupons of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest
and Additional Amounts.
The Company covenants and agrees for the benefit
of the Holders of each series of Securities that it will
duly and punctually pay the principal of (and premium, if
any) and interest on and any Additional Amounts with
respect to the Securities of that series in accordance
with the terms of the Securities and this Indenture.
The interest on Securities with Coupons
appertaining thereto shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they
severally mature. The interest, if any, on any temporary
Bearer Security shall be paid, as to any installment of
interest evidenced by a Coupon attached thereto only upon
presentation and surrender of such Coupon and, as to other
installments of interest, only upon presentation of such
Security for notation thereon of the payment of such
interest.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issued as
Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or
agency where Securities and Coupons, if any of that series
may be presented or surrendered for payment, where
securities of that series may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the
Securities of that series and this Indenture may be
served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain an office or agency,
(A) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located
outside the United States, where Securities of that series
and related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of that
series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited,
the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or
any other required city located outside the United States,
as the case may be, so long as the Securities of that
series are listed on such exchange and (B) subject to any
laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States,
where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If
at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, except that
Bearer Securities of such series and any Coupons
appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with
respect to such Securities as provided in or pursuant to
this Indenture, and the Company hereby appoints the
Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
Except as otherwise provided in or pursuant to
this Indenture, no payment of principal or interest on
Bearer Securities shall be made at any office or agency of
the Company in the United States, by check mailed to any
address in the United States, by transfer to an account
located in the United States or upon presentation or
surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited
to an account located outside the United States; provided,
however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal
of and any interest on or any Additional Amounts with
respect to any such Bearer Security shall be made at the
office of the Company's Paying Agent in Chicago, Illinois
or in the event that certificated senior notes are issued
or if The Depositary Trust Company shall so require, the
Company will be required to appoint a paying agent and
security registrar in the City of New York if (but only
if) payment in Dollars of the full amount of such
principal, interest or Additional Amounts, as the case may
be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate
one or more other offices or agencies where the Securities
(including any Coupons, if any) of one or more series may
be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation
to maintain an office or agency in each Place of Payment
for Securities (including any Coupons, if any) of any
series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such
other office or agency. Unless otherwise provided in or
pursuant to this Indenture, the Company hereby designates
as the Place of Payment for each series as Chicago,
Illinois and initially appoints the office or agency of
the Corporate Trust Office of the Trustee for such
purpose. In the event that certificated senior notes are
issued or if The Depositary Trust Company shall so
require, the Company will appoint a paying agent and
security registrar in the City of New York. Pursuant to
Section 301(6) of this Indenture, the Company may
subsequently appoint a place or places in addition to or
other than Chicago, Illinois where such Securities may be
payable.
SECTION 1003. Money for Securities Payments to Be Held
in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it
shall, on or before each due date of the principal of (and
premium, if any) or interest on or any Additional Amounts
with respect to any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons
entitled thereto a sum of Money sufficient to pay the
principal (and premium, if any), interest or Additional
Amounts so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more
Paying Agents for any series of Securities, it shall, on
or prior to (but in the case of payments to be made at a
Place of Payment outside of the United States, its
territories, possessions and areas subject to its
jurisdiction, at least one New York Business Day before)
each due date of the principal of, any premium or interest
on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a
sum of Money sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such Paying Agent is
the Trustee) the Company shall promptly notify the Trustee
of its action or failure so to act.
The Company shall cause each Paying Agent for any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on or
any Additional Amounts with respect to Securities of that
series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by
the Company (or any other obligor upon the Securities of
that series) in the making of any payment of principal
(and premium, if any) or interest on or any Additional
Amounts with respect to the Securities of such series;
and
(3) at any time during the continuance of any
such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all
further liability with respect to such Money.
Any Money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or
interest on or any Additional Amounts with respect to any
Security of any series and remaining unclaimed for 2 years
after such principal (and premium, if any) or interest or
Additional Amounts shall have become due and Payable shall
be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust;
and the Holder of such Security and Coupon, if any, shall
thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such Money,
and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place
of Payment for such series or to be mailed to Holders of
Registered Securities of such series notice that such
money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the
date of such publication or mailing nor shall it be later
than 2 years after such principal and any premium or
interest or Additional Amounts shall have become due and
payable, any unclaimed balance of such Money then
remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If any Securities of a series provide for the
payment of Additional Amounts, the Company agrees to pay
to the Holder of any such Security or any Coupon
appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of
any series or any Coupon or the net proceeds received on
the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that,
in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if
applicable) in any provision hereof shall not be construed
as excluding Additional Amounts in those provisions hereof
where such express mention is not made.
Except as otherwise provided in or pursuant to
this Indenture, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior
to the first Interest Payment Date with respect to such
series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day
on which a payment of principal is made), and at least 10
days prior to each date of payment of principal or
interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish to the Trustee and
the principal Paying Agent or Paying Agents, if other than
the Trustee, an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether
such payment of principal of or interest on the Securities
of such series shall be made to Holders of Securities of
such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account
of any tax, assessment or other governmental charge
described in the Securities of such series. If any such
withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders
of Securities or Coupons and the Company agrees to pay to
the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant
to this Section.
SECTION 1005. Corporate Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any
such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1006. Limitation on Liens.
Except as hereinafter in this Section 1006
expressly permitted and as permitted by Section 801, so
long as any of the Securities remain Outstanding, the
Company will not at any time directly or indirectly
create, assume or suffer to exist, and will not cause,
suffer or permit any Subsidiary to create, assume or
suffer to exist, otherwise than in favor of the Company or
a Subsidiary, any mortgage, pledge, lien, encumbrance of
or upon or security interest (collectively, "Liens") upon
any of its properties or assets, real, personal or mixed,
whether owned at the date of this Indenture or thereafter
acquired, or of or upon, any income or profits therefrom,
without making effective provision, and the Company
covenants that in any such case it will make or cause to
be made effective provision, whereby the Securities then
or thereafter Outstanding shall be secured by such Liens
equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other
obligations or indebtedness shall be so secured.
Nothing in this Section 1006 shall be construed
to prevent the Company or any Subsidiary from creating,
assuming or suffering to exist Liens of the following
character, to all of which the provisions of the first
paragraph of this Section 1006 shall not be applicable:
(a) Liens existing as of the date of this
Indenture;
(b) Any purchase money mortgage or Lien
created to secure all or part of the purchase price of any
property (or to secure a loan made to the Company or any
Subsidiary to enable it to acquire the property described
in such mortgage or in any applicable security agreement);
provided that such Lien shall extend only to the property
so acquired, improvements thereon, replacements thereof
and the income or profits therefrom;
(c) Liens on any property at the time of the
acquisition thereof, whether or not assumed by the Company
or a Subsidiary; provided that such Lien shall extend only
to the property so acquired, improvements thereon,
replacements thereof and the income or profits therefrom;
(d) Liens on any property or any contract for
the sale of any product or service, or any rights
thereunder or any proceeds therefrom, acquired or
constructed by the Company or a Subsidiary, and created
not later than twelve months after (i) such acquisition or
completion of such construction, or (ii) commencement of
operation of such property, whichever is later; provided
that such Lien shall extend only to the property so
acquired or constructed, improvements thereon,
replacements thereof and the income or profits therefrom;
(e) Liens on the properties or assets, real,
personal or mixed, of a Subsidiary, or of or upon or in
any income or profits therefrom, which is outstanding at
the time such Subsidiary becomes a Subsidiary;
(f) Liens created or assumed by the Company or
a Subsidiary on coal, geothermal, oil, natural gas, inert
gas, other hydrocarbon or mineral properties owned or
leased by the Company or a Subsidiary to secure loans to
the Company or a Subsidiary for the purpose of developing
such properties;
(g) Liens on any investment of the Company or
a Subsidiary in any Person other than a Subsidiary or any
security representing any investment of the Company or a
Subsidiary; for the purposes of this Clause (g),
"investment" means any equity investment in any Person,
any obligation of any Person for money borrowed or for the
deferred purchase price of property which is owed to the
Company or a Subsidiary, as the case may be, and any
amount advanced to any person by the Company or any
Subsidiary, excluding, however, current accounts payable
other than for cash advances;
(h) Any Lien not otherwise permitted by this
Section 1006 if, after giving effect to the creation or
assumption of the proposed mortgage, pledge, lien,
encumbrance or security interest the sum of (i) all
indebtedness of the Company and its Subsidiaries secured
by Liens not otherwise permitted by this Section 1006, and
(ii) to the extent not included in (i) above, all
Attributable Debt of the Company and its Subsidiaries does
not exceed 10% of Consolidated Capitalization;
(i) Any refunding or extension of maturity, in
whole or in part, of any obligation or indebtedness
secured by any Lien created, existing or assumed in
accordance with the provisions of Clauses (a) through (h)
above, inclusive, provided that the principal amount of
the obligation or indebtedness secured by such refunding
or extended Liens shall not exceed the principal amount of
the obligation or indebtedness to be refunded or extended
outstanding at the time of such refunding or extension,
together with related financing costs, and that such
refunding or extended Liens shall be limited in lien to
the same property that secured the obligation or
indebtedness refunded or extended, and property
substituted therefor and property acquired after the date
thereof and subject to the lien thereof, in accordance
with the provisions of such refunding or extension;
(j) Liens on any office equipment or data
processing equipment (including, without limitation,
computer and computer peripheral equipment) or any motor
vehicles, tractors or trailers;
(k) Liens of or upon or in current assets of
the Company or a Subsidiary, determined in accordance with
GAAP, created or assumed to secure indebtedness incurred
in the ordinary course of business;
(l) Mechanics' or materialmen's liens; any
lien or charge arising by reason of pledges or deposits to
secure payment of or to permit participation in workmen's
compensation, unemployment insurance, old age pensions or
other Social Security or other insurance or to permit
self-insurance; good faith deposits in connection with
tenders or leases of real estate, bids or contracts or in
connection with the financing of the acquisition or
construction of property to be used in the business of the
Company or a Subsidiary; deposits to secure public or
statutory obligations; deposits to secure or in lieu of
surety, stay or appeal bonds; deposits as security for the
payment of taxes or assessments or other similar charges;
judgment liens against the Company or any Subsidiary
thereof in an aggregate amount not in excess $5,000,000,
or any such judgment lien so long as the finality of such
judgment is being contested and execution thereon is
stayed and which has been appealed and secured, if
necessary, by the filing of an appeal bond; and liens for
taxes or assessments for the current year or which are not
due or which remain payable without penalty or which are
being contested in good faith and against which an
adequate reserve has been established;
(m) Any lien arising by reason of deposits
with or the giving of any form of security to any
governmental agency or any body created or approved by law
or governmental regulation for any purpose at any time in
connection with the financing of the acquisition or
construction of property to be used in the business of the
Company or a Subsidiary, or as required by law or
governmental regulation as a condition to the transaction
of any business or the exercise of any privilege or
license, or to permit the maintenance of self-insurance or
participation in any fund for liability on any insurance
risks or in connection with workmen's compensation,
unemployment insurance, old age pensions or other social
security or to share in the privileges or benefits
required for companies participating in such arrangements;
(n) Liens which are payable, both with respect
to principal and interest, solely out of the proceeds of
natural gas, oil, coal, geothermal resources, inert gas,
hydrocarbons or minerals to be produced from the property
subject thereto and to be sold or delivered by the Company
or a Subsidiary;
(o) Liens to secure indebtedness incurred to
finance advances made by the Company or any Subsidiary to
any third party for the purpose of financing oil, natural
gas, hydrocarbon, inert gas or other mineral exploration
or development, provided that such liens shall extend only
to the receivables of the Company or such Subsidiary in
respect of such advances;
(p) Any rights reserved in others to take or
reserve any part of the natural gas, oil, coal, geothermal
resources, inert gas, other hydrocarbons or mineral
produced at any time on any property of the Company or a
Subsidiary;
(q) Any rights reserved to or vested in, or
any obligations or duties to, any person, firm,
corporation or governmental authority by the terms of any
franchise, grant, lease, license, easement or permit or by
any provision of law with respect to any property of the
Company or a Subsidiary.
(r) Leases (whether pursuant to Sale and
Leaseback Transactions or otherwise) now or hereafter
existing and any renewals or extensions thereof;
(s) Liens upon the underlying interests in
property covered by any lease, contract, easement or
right-of-way existing at the time of the acquisition
thereof; easements or similar encumbrances, the existence
of which does not materially impair the use of the
property subject thereto for the purposes for which it was
acquired; liens upon rights-of-way for pipeline or
distribution plant purposes and undetermined liens and
charges incidental to construction or maintenance; or
defects and irregularities in the titles to any property
(including right-of-way) which are not material to the
business of the Company and its Subsidiaries considered as
a whole;
(t) The lien reserved in leases for rent and
for compliance with the terms of the lease in the case of
leasehold estates;
(u) Zoning laws and ordinances; and
(v) Liens which secure indebtedness of a
Subsidiary to the Company or another Subsidiary.
If at any time the Company or any Subsidiary
shall create or assume any Lien to which the covenant in
the first paragraph of this Section 1006 is applicable,
the Company will promptly deliver to the Trustee an
Officers' Certificate, stating that such covenant has been
complied with, and an Opinion of Counsel, stating that in
his opinion such covenant has been complied with and that
any instruments executed by the Company or any Subsidiary
in the performance of such covenant complied with the
requirements thereof.
In the event that the Company or any Subsidiary
shall hereafter secure the Securities equally and ratably
with any other obligation or indebtedness pursuant to the
provisions of this Section 1006, the Trustee is hereby
authorized to enter into an indenture supplemental hereto
and to take such action, if any, as it may deem advisable
to enable it to enforce effectively the rights of the
Holders of the Securities so secured, equally and ratably
with such other obligation or indebtedness.
The Trustee may accept an Officers' Certificate
and Opinion of Counsel as conclusive evidence that any
such supplemental indenture or steps taken to secure the
Securities equally and ratably comply with the provisions
of this Section 1006.
SECTION 1007. Change of Control.
If this Section is specified, as contemplated by
Section 301, to be applicable to Securities and Coupons,
if any, of any series, and if a Change of Control occurs
and is accompanied by a Rating Decline (together, a
"Change of Control Triggering Event"), each Holder of
Securities of such series will have the right to require
the Company to offer to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such
Holder's Securities at a purchase price in cash equal to
the principal amount of such Securities plus accrued and
unpaid interest, if any, to the date of purchase.
Within 30 days following any Change of Control
Triggering Event, the Company will mail a notice (the
"Change of Control Offer") to each Holder of Securities of
such series with a copy to the Trustee stating:
(a) that a Change of Control Triggering Event
has occurred and that such Holder has the right to require
the Company to purchase such Holder's Securities at a
purchase price in cash equal to the principal amount of
such Securities plus accrued and unpaid interest, if any,
to the date of purchase (the "Change of Control Payment");
(b) the repurchase date (which shall be no
earlier than 30 days nor later than 60 days from the date
such notice is mailed) (the "Change of Control Payment
Date"); and
(c) the procedures determined by the Company,
consistent with the Indenture, that a Holder must follow
in order to have its Securities repurchased.
On the Change of Control Payment Date with
respect to the Securities of any series, the Company will,
to the extent lawful:
(a) accept for payment all Securities of such
series or portions thereof (in integral multiples of
$1,000) properly tendered and not withdrawn under the
Change of Control Offer;
(b) deposit with the paying agent an amount
equal to the Change of Control Payment in respect of all
Securities of such series or portions thereof so tendered;
and
(c) deliver or cause to be delivered to the
Trustee the Securities of such series so accepted together
with an Officers' Certificate stating the aggregate
principal amount of such Securities or portions thereof
being purchased by the Company.
The Paying Agent will promptly mail to each
Holder of Securities of any series so tendered the Change
of Control Payment for such Securities, and the Trustee
will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Security
equal in principal amount to any unpurchased portion of
the Securities surrendered, if any; provided that each
such new Security will be in a principal amount of $1,000
or an integral multiple of $1,000.
If the Change of Control Payment Date is on or
after an interest record date and on or before the related
interest payment date, any accrued and unpaid interest, if
any, will be paid to the Person in whose name a Security
is registered at the close of business on such record
date, and no additional interest will be payable to
Holders who tender pursuant to the Change of Control Offer.
Prior to mailing a Change of Control Offer, and
as a condition to such mailing (i) the requisite Holders
of each issue of Indebtedness issued under any indenture
or other agreement that may be violated by such payment
shall have consented to such Change of Control Offer being
made and waived the event of default, if any, caused by
the Change of Control Triggering Event or (ii) the Company
will repay all outstanding Indebtedness issued under any
indenture or other agreement that may be violated by a
payment to the Holders of Securities under a Change of
Control Offer or the Company must offer to repay all such
Indebtedness, and make payment to the holders of such
Indebtedness that accept such offer and obtain waivers of
any event of default from the remaining holders of such
Indebtedness. The Company covenants to effect such
repayment or obtain such consent and waiver within 30 days
following any Change of Control Triggering Event, it being
an Event of Default if the Company fails to comply with
such covenant within 30 days after receipt of written
notice from the Trustee or the Holders of at least 25% in
principal amount of the Securities of any series.
The Company will not be required to make a Change
of Control Offer upon a Change of Control Triggering Event
if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the
requirements set forth herein applicable to a Change of
Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such
Change of Control Offer.
SECTION 1008. Waiver of Covenant.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in Article Eight and Sections 1005 and 1006, if before the
time for such compliance the Holders of (i) a majority in
principal amount of the Outstanding Securities or (ii) in
case less than all of the several series of Securities
then Outstanding are affected by the omission, at least a
majority in principal amount of the Outstanding Securities
of each series so affected voting as a single class shall,
by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full
force and effect.
SECTION 1009. Statements as to Compliance; Notice of
Certain Defaults.
(a) The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal
year, a written statement (which need not be contained in
or accompanied by an Officers' Certificate) signed by the
principal executive officer, the principal financial
officer or the principal accounting officer of the Company
stating that
(1) a review of the activities of the Company
during such year and of performance under this Indenture
has been made under his or her supervision, and
(2) to the best of his or her knowledge, based
on such review, (a) the Company has complied with all the
conditions and covenants imposed on it under this
Indenture throughout such year, or, if there has been a
default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her
and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or
lapse of time or both would become, an Event of Default,
or, if such an event has occurred and is continuing,
specifying each such event known to him and the nature and
status thereof.
(b) The Company shall deliver to the
Trustee, within five days after the occurrence thereof,
written notice of any event which after notice or lapse of
time or both would become an Event of Default.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities (including Coupons, if any) of any
series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and
(except as otherwise specified or contemplated by Section
301 for Securities of any series) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities (including Coupons, if any) shall be evidenced
by a Board Resolution. In case of any redemption at the
election of the Company of all or less than all of the
Securities (including Coupons, if any) of any series, the
Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of
any redemption of Securities (including Coupons, if any)
prior to the expiration of any restriction on such
redemption provided in the terms of such Securities and
Coupons, if any, or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be
Redeemed.
If less than all the Securities (including
Coupons, if any) of any series with the same terms are to
be redeemed, the particular Securities (including Coupons,
if any) to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the
Outstanding Securities (including Coupons, if any) of such
series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities (including Coupons, if any) of that series or
any integral multiple thereof) of the principal amount of
Securities (including Coupons, if any) of such series of a
denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the Company in
writing of the Securities (including Coupons, if any)
selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities shall relate, in the case of any
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given not less than
30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to
be redeemed, to each Holder of Securities to be redeemed,
as provided in Section 105.
Each such notice of redemption shall specify the
Redemption Date, the Redemption Price, the Place or Places
of Payment, the CUSIP number of such Securities, if any,
that the Securities of such series are being redeemed at
the option of the Company pursuant to provisions contained
in the terms of the Securities of such series or in a
supplemental indenture establishing such series, if such
be the case, together with a brief statement of the facts
permitting such redemption, that payment will be made upon
presentation and surrender of the applicable Securities,
that all Coupons, if any, maturing subsequent to the date
fixed for redemption shall be void, that any interest
accrued to the Redemption Date will be paid as specified
in such notice, and that on and after such Redemption Date
any interest thereon or, in case of partial redemptions,
on the portions thereof to be redeemed, will cease to
accrue. If less than all the Securities of any series are
to be redeemed, the notice of redemption shall specify the
numbers of the Securities of such series to be redeemed,
and, if only Bearer Securities of any series are to be
redeemed and if such Bearer Securities may be exchanged
for Registered Securities, the last date on which
exchanges of Bearer Securities for Registered Securities
not subject to redemption may be made. In case any
Security of any series is to be redeemed in part only, the
notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state
that on and after the Redemption Date, upon surrender of
such Security and any Coupons appertaining thereto, a new
Security or Securities of such series in principal amount
equal to the unredeemed portion thereof and with
appropriate Coupons will be issued, or, in the case of
Registered Securities providing appropriate space for such
notation, at the option of the Holders, the Trustee, in
lieu of delivering a new Security or Securities as
aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons,
if any, to be redeemed at the election of the Company
shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of
the Company.
SECTION 1105. Deposit of Redemption Price.
On or before (but in the case of payments to be
made at a Place of Payment outside of the United States,
its territories, possessions and areas subject to its
jurisdiction, at least one New York Business Day before)
10:00 A.M., New York City time, on any Redemption Date,
the Company shall deposit in immediately available funds
with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of
Money in the relevant currency (or a sufficient number of
currency units, as the case may be) sufficient to pay the
Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) any accrued interest on
and Additional Amounts with respect to all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date
(unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities
shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be
void. Except as provided in the next succeeding paragraph,
upon surrender of any such Security (including Coupons, if
any) for redemption in accordance with such notice, such
Security shall be paid by the Company at the Redemption
Price, together with accrued interest and Additional
Amounts to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section
1002), and provided, further, that installments of
interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant Coupons
maturing after the Redemption Date, such Bearer Security
may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security
shall surrender to the Trustee or any Paying Agent any
such missing Coupon in respect of which a deduction shall
have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts
represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office
or agency located outside of the United States except as
otherwise provided pursuant to Sections 901(10) and 1002.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear
interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security (including Coupons, if
any) which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to,
the Company and the Trustee duly executed by the Holder
thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or
Securities (with appropriate Coupons, if any, attached) of
the same series, containing identical terms and
provisions, 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 (including Coupons, if any) so surrendered.
If a Security in global from is so surrendered, the
Company shall execute and the Trustee shall authenticate
and deliver to the U.S. Depository or other depository for
such Security in global form as shall be specified in the
Company Order with respect thereto, to the Trustee,
without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed
portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities
of any series as provided for by the terms of Securities
of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver outstanding
Securities of a series (other than any previously called
for redemption or any of such Securities in respect of
which cash shall have been released to the Company),
together in the case of any Bearer Securities of such
series with all unmatured Coupons appertaining thereto,
and (2) may apply as a credit Securities of a series which
have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series
required to be made pursuant to the terms of such
Securities as provided for by the terms of such series;
provided that such Securities have not been previously so
credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through
operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Securities, the Company
will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section
1202 and will also deliver to the Trustee any Securities
to be so delivered. Not less than 30 nor more than 60 days
before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Securities of any series which are repayable at
the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with the terms of
the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of
the Holder to require repayment of Securities before their
Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that
such Securities be cancelled. Notwithstanding anything to
the contrary contained in this Section 1301, in connection
with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with
one or more investment bankers or other purchasers to
purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the
repayment date an amount not less than the repayment price
payable by the Company on repayment of such Securities,
and the obligation of the Company to pay the repayment
price of such Securities shall be satisfied and discharged
to the extent such payment is so paid by such purchasers.
The Company shall provide written notice to the
Trustee at least 30 days before any tender period related
to a repayment pursuant to this Section 1301.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1401. Applicability of Article.
Whenever this Indenture provides for (i) any
action by, or the determination of any of the rights of,
Holders of Securities of any series in which not all of
such Securities are denominated in the same Currency, or
(ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of
Security of any particular series, any amount in respect
of any Security denominated in a Currency other than
Dollars shall be treated for any such action or
distribution as that amount of Dollars that could be
obtained for such amount at the noon buying rate in the
City of New York for cable transfers in foreign currencies
as certified for customs purposes by the Federal Reserve
Bank of New York and as of the record date with respect to
Registered Securities of such series (if any) for such
action, determination of rights or distribution (or, if
there shall be no applicable record date, such other date
reasonably proximate to the date of such action,
determination of rights or distribution) as the Company
may specify in a written notice to the Trustee.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May be Called.
A meeting of Holders of Securities of such series
may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting
of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at
such place in the Borough of Manhattan, The City of New
York or, if Securities of such series are to be issued as
Bearer Securities, in London, as the Trustee shall
determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the
place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in
the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company (by or
pursuant to a Board Resolution) or the Holders of at least
10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for
any purpose specified in Section 1501, by written request
setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of
Securities of such series in the amount above specified,
as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or, if
Securities of such series are to issued as Bearer
Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders
of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders, of
Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than 662/3% in
principal amount of the Outstanding Securities of a
series, the Persons entitled to vote 662/3% in principal
amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for period of not less
than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice
of the reconvening of any adjourned meeting shall be given
as provided in Section 1502(a), except that such notice
need be given only once not less than five days prior to
the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902,
any resolution represented to a meeting or adjourned
meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however,
that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which
this Indenture expressly provides may be given by the
Holders of not less than 662/3% in principal amount of the
Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly convened and at which
a quorum is present as aforesaid only by the affirmative
vote of the Holders of 662/3% in principal amount of the
Outstanding Securities of that series; and provided,
further, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be
made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal
amount of the outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding
Securities of such series.
Any resolution passed or decision taken at any
meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all
the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not present or
represented at the meeting.
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in
the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such
regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section
104 or other proof.
(b) The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company
or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of
Securities of the series calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security
of such series or proxy shall be entitled to one vote for
each $1,000 principal amount of Securities of such series
held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of
any series duly called pursuant to Section 1502 at which a
quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at
the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any
meeting of Holders of Securities of any series shall be by
written ballots on which shall be subscribed the signature
of the Holders of Securities of such series or of their
representative by proxy and the principal amounts and
serial number of the Outstanding Securities of such series
held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary
of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record, at
least in triplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by
the secretary of the meeting and there shall be attached
to such record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section
1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy
shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence
of the matters therein stated.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
QUESTAR MARKET RESOURCES, INC.
By /s/G. L. Nordloh
[SEAL] Name: G. L. Nordloh
Title: President and Chief
Executive Officer
Attest:
/s/Connie C. Holbrook
Name: Connie C. Holbrook
Title: Corporate Secretary
BANK ONE, NA, Trustee
[SEAL] By /s/Chris Holly
Name: Chris Holly
Title: Assistant Vice President
Attest:
/s/Lisa A. Nix
Name: Lisa A Mix
Title: Executive Assistant
STATE OF UTAH )
: SS.:
COUNTY OF SALT LAKE )
On this 1st of March, 2001 before me personally
appeared G. L. Nordloh, who acknowledged himself to be
the President and Chief Executive Officer of QUESTAR MARKET
RESOURCES,INC., a Utah corporation, and that he, as such
President and Chief Executive Officer, being authorized so to
do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself as
such President and Chief Executive Officer.
IN WITNESS WHEREOF, I hereunto set may hand and
official seal.
/s/Lucille C. Curtis
Notary Public
STATE OF ILLINOIS )
: SS.:
COUNTY OF Cook )
On this 1st day of March, 2001 before me
personally came Chris Holly, to me known, who, being by me
duly sworn, did depose and say that he is an Assistant
Vice President of BANK ONE, NA, the national banking
association described in and which executed the foregoing
instrument; that he knows the seal of said national
banking association; that the seal affixed to said
instrument is such seal; that it was so affixed by
authority of the Board of Directors of said national
banking association, and that he signed his name thereto
by like authority.
/s/Lisa A. Nix
Notary Public
[NOTARY SEAL]
Exhibit No. 4.02.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE
INDENTURE HEREINAFTER REFERENCED. 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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
QUESTAR MARKET RESOURCES, INC.
71/2% NOTES DUE 2011
No. 1
$150,000,000
CUSIP No. 74836J AA 1
QUESTAR MARKET RESOURCES, INC., a corporation duly
organized and existing under the laws of Utah (herein called
the "Company," which term includes any successor corporation
under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of One Hundred Fifty
Million Dollars ($150,000,000) on March 1, 2011 and to pay
interest thereon from March 6, 2001 or from the most recent
Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on March 1 and September 1
of each year, commencing September 1, 2001, at the rate of
71/2% per annum, until the principal hereof is paid or made
available for payment, and (to the extent that the payment
of such interest shall be legally enforceable) at the rate
of 71/2% per annum on any overdue principal and premium and
on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which
shall be the February 15 or August 15 (whether or not a
Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any)
and interest on this Security will be made at the office or
agency of the Company in the city of Chicago, Illinois or
The City of New York maintained for such purpose, and at any
other office or agency maintained by the Company for such
purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse
hereof by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: March 6, 2001
QUESTAR MARKET RESOURCES, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated herein referred to in the within-mentioned
Indenture.
BANK ONE, NA
as Trustee
By: ________________________________
Authorized Signatory
(REVERSE OF SECURITY)
This Security is one of a duly authorized issue of
debt securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series
under an Indenture, dated as of March 1, 2001 (herein called
the "Indenture", which term shall have the meaning assigned
to it in such instrument), between the Company and Bank One,
NA, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective
rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $150,000,000.
The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days'
notice by first-class mail, at any time, as a whole or in
part, at the election of the Company, at a Redemption Price
equal to the greater of (i) 100% of the principal amount of
the Securities of this series to be redeemed or (ii) the sum
of the present values of the remaining scheduled payments of
principal and interest on the Securities of this series to
be redeemed (not including any portion of such payments of
interest accrued as of the Redemption Date) discounted to
the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 30 basis points, plus, in each case,
accrued and unpaid interest on the principal amount of the
Securities of this series being redeemed to the Redemption
Date; provided that interest payments due on or prior to the
Redemption Date will be paid to the record holders of such
Securities on the relevant record date. As used herein the
following terms will have the definitions given below:
"Treasury Rate" means, with respect to any
Redemption Date, the rate per annum equal to the semiannual
equivalent yield to maturity or interpolated (on a day count
basis) of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date.
"Comparable Treasury Issue" means the United States
Treasury security or securities selected by an Independent
Investment Banker as having a maturity or interpolated (on a
day count basis) comparable to the remaining term of the
Securities of this series to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of a comparable maturity to the
remaining term of the Securities.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to
any Redemption Date, (i) the average of the Reference
Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average
of all such quotations.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any Redemption
Date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 3:30 p.m. New York time on the third
business day in The City of New York preceding such
Redemption Date.
"Reference Treasury Dealer" means at least five
primary U.S. Government securities dealers in The City of
New York as the Company shall select.
In the event of redemption of this Security in part
only, a new Security or Securities of this series and of
like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
There is no sinking fund or mandatory redemption
obligation applicable to the Securities of this series.
If a Change of Control occurs and is accompanied by
a Rating Decline (together, a "Change of Control Triggering
Event"), the Holder will have the right to require the
Company to offer to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's
Securities of this series at a purchase price in cash equal
to the principal amount of such Securities plus accrued and
unpaid interest, if any, to the date of purchase. Within 30
days following any Change of Control Triggering Event, the
Company will mail the Change of Control Offer to each
registered Holder with a copy to the Trustee. No earlier
than 30 days nor later than 60 days from the date such
Change of Control Offer is mailed (the "Change of Control
Payment Date"), the Company will, to the extent lawful, (i)
accept for payment all Securities of this series or portions
thereof (in integral multiples of $1,000) properly tendered
and not withdrawn under the Change of Control Offer, (ii)
deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all Securities of this
series or portions thereof so tendered, and (iii) deliver or
cause to be delivered to the Trustee the Securities of this
series so accepted together with an Officers' Certificate
stating the aggregate principal amount of such Securities or
portions thereof being purchased by the Company.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal
amount of the Securities of this series may be declared due
and payable in the manner and with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights
of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding
of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in principal
amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter
or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security
is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or
agency of the Company in any place where the principal of
(and premium, if any) and interest on this Security are
payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company
and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and
of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.