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
Commission File Number 1-10308
__________________________
January 17, 2003 (January 13, 2003)
Date of Report (Date Of Earliest Event Reported)
Cendant Corporation
(Exact name of Registrant as specified in its charter)
Delaware 06-0918165
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
9 West 57th Street, New York, New York 10019
(Address of Principal Executive Office) (Zip Code)
(212) 413-1800
(Registrant's telephone number, including area code)
None
(Former name, former address and former fiscal year, if applicable)
Item 5. Other Events.
On January 10, 2003, we filed a Prospectus Supplement, dated
January 8, 2003, to the Prospectus dated August 16, 2001, included as part of
the Registration Statement on Form S-3 of the Company (File No. 333-65858) (the
"Registration Statement"), relating to the offering of $800,000,000 aggregate
principal amount of our 6.250% Senior Notes due 2008 and $1,200,000,000
aggregate principal amount of our 7.375% Senior Notes due 2013 (collectively,
the "Notes"). On January 8, 2003, we entered into an Underwriting Agreement
with Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Banc of America
Securities LLC, Banc One Capital Markets, Inc., Barclays Capital Inc., Credit
Lyonnais Securities (USA) Inc., The Royal Bank of Scotland plc, Scotia Capital
(USA) Inc. and Wachovia Securities, Inc., relating to the offering and sale by
us of the Notes under the Registration Statement. We entered into an Indenture,
dated as of January 13, 2003, with The Bank of Nova Scotia Trust Company of New
York, as trustee, under which the Notes were issued. In connection with this
offering, we are filing certain exhibits as part of this Form 8-K. See "Item 7.
Exhibits." A copy of certain agreements related to the offering and the press
release regarding the offering are attached hereto as exhibits and are
incorporated by reference in their entirety.
Item 7. Exhibits.
(c) Exhibits
Exhibit
No. Description
1.1 Underwriting Agreement, dated January 8, 2003, between Cendant Corpo
ration and Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Banc
of America Securities LLC, Banc One Capital Markets, Inc., Barclays
Capital Inc., Credit Lyonnais Securities (USA) Inc., The Royal Bank of
Scotland plc, Scotia Capital (USA) Inc. and Wachovia Securities, Inc.
4.1 Indenture, dated as of January 13, 2003, between
Cendant Corporation and The Bank of Nova Scotia Trust
Company of New York, as trustee.
4.2 Form of 6.250% Senior Note.
4.3 Form of 7.375% Senior Note.
5.1 Opinion of Eric J. Bock regarding the legality of the Notes.
99.1 Press Release issued by Cendant Corporation dated January 8, 2003.
99.2 Press Release issued by Cendant Corporation dated January 6, 2003.
SIGNATURE
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 hereunder duly authorized.
CENDANT CORPORATION
By: /s/ Eric J. Bock
--------------------------------------
Eric J. Bock
Executive Vice President, Law
and Corporate Secretary
Date: January 17, 2003
CENDANT CORPORATION
CURRENT REPORT ON FORM 8-K
Report Dated January 17, 2003 (January 13, 2003)
EXHIBIT INDEX
Exhibit
No. Description
1.1 Underwriting Agreement, dated January 8, 2003, between Cendant Corpo
ration and Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Banc
of America Securities LLC, Banc One Capital Markets, Inc., Barclays
Capital Inc., Credit Lyonnais Securities (USA) Inc., The Royal Bank of
Scotland plc, Scotia Capital (USA) Inc. and Wachovia Securities, Inc.
4.1 Indenture, dated as of January 13, 2003, between
Cendant Corporation and The Bank of Nova Scotia Trust
Company of New York, as trustee.
4.2 Form of 6.250% Senior Note.
4.3 Form of 7.375% Senior Note.
5.1 Opinion of Eric J. Bock regarding the legality of the Notes.
99.1 Press Release issued by Cendant Corporation dated January 8, 2003.
99.2 Press Release issued by Cendant Corporation dated January 6, 2003.
Exhibit 1.1
CENDANT CORPORATION
(a Delaware corporation)
6.250% Senior Notes due 2008
7.375% Senior Notes due 2013
UNDERWRITING AGREEMENT
January 8, 2003
CENDANT CORPORATION
(a Delaware corporation)
6.250% senior Notes due 2008
7.375% Senior Notes due 2013
UNDERWRITING AGREEMENT
January 8, 2003
To the Underwriters named in Schedule I
Ladies and Gentlemen:
Cendant Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to the underwriters named in Schedule I (the "Underwriters")
the principal amount of certain of its debt securities specified in Schedule
II (the "Securities") on the terms and conditions stated herein and in
Schedule II. The Securities will be issued pursuant to an indenture to be
dated as of January 13, 2003 (the "Indenture") between the Company and The
Bank of Nova Scotia Trust Company of New York, as trustee (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No.
333-65858), including a prospectus, relating to certain of its debt securities
(including the Securities), preferred stock, CD common stock, stock purchase
contracts, stock purchase units and warrants and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statement was declared effective
by the Commission on August 16, 2001. As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Securities, the terms of the
offering thereof and the other matters set forth therein will be filed
pursuant to Rule 424 under the 1933 Act. Such prospectus supplement, in the
form first filed after the date hereof pursuant to Rule 424, is herein
referred to as the "Prospectus Supplement". Such registration statement, as
amended at the date hereof, together with any registration statements filed by
the Company pursuant to Rule 462(b) under the 1933 Act, including the exhibits
thereto and the documents incorporated by reference therein, is herein called
the "Registration Statement", and the base prospectus included therein
relating to all offerings of debt securities, preferred stock, CD common
stock, stock purchase contracts, stock purchase units and warrants under the
Registration Statement, as supplemented by the Prospectus Supplement, is
herein called the "Prospectus", except that, if such base prospectus is
amended or supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall
refer to the base prospectus, as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
You have advised us that you and the other Underwriters, acting
severally and not jointly, desire to purchase the Securities and that you have
been authorized by the other Underwriters to execute this Underwriting
Agreement (the "Agreement") on their behalf.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to and agrees with each
Underwriter that:
(i) On the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, and on the date of the filing by the
Company of any annual report on Form 10-K after the original filing of
the Registration Statement, the Registration Statement complied in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission there under (the "1933 Act
Regulations"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations") and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; on the date hereof and at the Closing Time (as defined
below), the Registration Statement, and any amendments thereof, and
the Prospectus, and any amendments thereof and supplements thereto,
comply and will comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939
Act Regulations, and neither the Registration Statement nor any
amendments thereof include or will include an untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and neither the Prospectus, nor any amendments thereof and
supplements thereto, include or will include an untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to statements or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the Prospectus,
at the time they were filed with the Commission, complied in all
material respects with the requirements of the 1934, and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together with the other information in the Prospectus,
do not and will not, on the date hereof and at the Closing Time,
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(iii) The accountants (individually an "Accountant" and together
the "Accountants"), who have reported upon the audited financial
statements and schedules included or incorporated by reference in the
Registration Statement, are each independent public accountants as
required by the 1933 Act and the 1933 Act Regulations with respect to
(i) the Company and (ii) each corporation whose financial statements
have been included in the Registration Statement for each of the years
reported on by the Accountants.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified. Except as otherwise stated
therein, such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements incorporated by reference in the
Registration Statement. The pro forma financial statements and related
notes thereto included or incorporated by reference in the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
pro forma bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances
referred to therein.
(vi) The Company is duly organized and is validly existing in
good standing as a corporation under the laws of the State of
Delaware, with corporate power and corporate authority to own, lease
and operate its properties and conduct its business as presently
conducted and as described in the Prospectus. The Company is qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
consolidated subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect").
(vii) Each significant subsidiary (as such term is defined in
clauses (1) and (2) of Rule 1-02(w) of Regulation S-X promulgated
under the Securities Act), if any, of the Company (each, a
"Significant Subsidiary") is duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation with corporate power and corporate authority under such
laws to own, lease and operate its properties and conduct its
business. Each Significant Subsidiary is duly qualified to transact
business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and Prospectus, all of
the outstanding shares of capital stock of each Significant Subsidiary
have been duly authorized and validly issued and are fully paid and
nonassessable and are owned by the Company, directly or through one or
more Significant Subsidiaries, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind
(each, a "Lien"), except for such Liens as are not, individually or in
the aggregate, material to the Company and its Significant
Subsidiaries, considered as one enterprise.
(viii) The Indenture has been duly authorized and when executed
and delivered by the Company, will constitute the valid and binding
obligation of the Company enforceable in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and will conform in all material
respects to the description thereof in the Prospectus. The Indenture
as executed will be substantially in the form filed as an exhibit to
the Registration Statement. At the Closing Time, the Indenture will
comply in all material respects with the requirements of the 1939 Act
and the 1939 Act Regulations.
(ix) The sale and issuance of the Securities have been duly
authorized by the Company. When executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and
paid for as provided herein, the Securities will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law); the Securities will conform in all
material respects to the description thereof in the Prospectus.
(x) All of the outstanding shares of capital stock of the
Company have been authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder.
(xi) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus and except as
otherwise stated therein, (A) there has been no material adverse
change and no development with respect to the Company that would
result in a Material Adverse Effect, (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those arising in the ordinary course of business, that are
material with respect to the Company and its subsidiaries, considered
as one enterprise, and (C) except for regular dividends on the common
stock in amounts per share that are consistent with past practice or
the applicable charter document or supplement thereto, respectively,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(xii) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or by-laws. None of the
Company or any of its Significant Subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, note, lease,
loan or credit agreement or any other agreement or instrument (the
"Agreements and Instruments") to which the Company or any of its
Significant Subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of the Company or any
Significant Subsidiary is subject, or in violation of any applicable
law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their respective properties or
assets, which violation or default would, singly or in the aggregate,
have a Material Adverse Effect.
(xiii) The execution and delivery by the Company of this
Agreement and the Indenture, the issuance and delivery of the
Securities, the consummation by the Company of the transactions
concerning the Securities contemplated herein and in the Registration
Statement and compliance by the Company with the terms of this
Agreement and the Indenture, have, in each case, been duly authorized
by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the certificate of
incorporation or by-laws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary under (A) any Agreement or
Instrument to which the Company or any subsidiary is a party or by
which it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material adverse Effect or (B) any
existing applicable law, rule, regulation (other than state
securities, foreign securities or Blue Sky laws, rules and
regulations), judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not have a Material
Adverse Effect).
(xiv) Except (i) as may be required under the 1933 Act, the 1939
Act and the rules and regulations promulgated thereunder and (ii) as
required by the state or foreign securities or "blue sky" laws, no
authorization, approval, consent, order, registration or qualification
of or with any court or governmental authority or agency is required
for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, or for the due execution, delivery or performance of the
Indenture by the Company, except such as have been obtained and made
under the federal securities laws.
(xv) There are no contracts or documents which are required to
be described in the Registration Statement or the Prospectus which
have not been so described and filed as required.
(xvi) Except as otherwise disclosed in the Prospectus, there is
no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Significant Subsidiaries that is
required to be disclosed in the Prospectus or that might reasonably be
expected to result in a Material Adverse Effect, or that might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement.
(xvii) Subject to each of the franchise and license agreements
entered into by the Company or any of its Significant Subsidiaries,
the Company and each of the Significant Subsidiaries own or have the
unrestricted right to use such patents, patent licenses, trademarks,
trademark licenses, service marks, service mark licenses and trade
names and registrations thereof (collectively, "Intellectual
Property") as are necessary to carry on their respective businesses as
presently conducted, except where the failure to own or possess any of
the Marks (as defined below), Days Inn Marks (as defined below) or
Ramada Marks (as defined below) would not have a Material Adverse
Effect. In addition to, and not in limitation of, anything else
contained in this paragraph (xvii), the Company or a Significant
Subsidiary (y) is the exclusive owner of all rights, title and
interest (subject to all existing franchise and license agreements
referred to above) in and to the Marks within the United States and
outside the United States is the owner of the registrations and
applications as are necessary to carry on its business as such
description is incorporated by reference in the Prospectus and as
currently conducted, except where the failure to be such owner would
not have a Material Adverse Effect and (z) is the exclusive licensee
(i) in the United States and Canada of the Ramada Marks and (ii) in
the United States of the Days Inn Marks. The Intellectual Property
with respect to the Company's ERA Franchise Systems, Inc., Century 21
Real Estate Corporation, Coldwell Banker Corporation, Cendant Mobility
Services Corporation, Cendant Mortgage Corporation, NRT Incorporated,
Trendwest Resorts, Inc., Days Inns Worldwide, Inc. (outside the United
States), Super 8 Motels, Inc., Villager Franchise Systems, Inc.,
Knights Franchise Systems, Inc., Howard Johnson International, Inc.,
Travelodge Hotels, Inc., Wingate Inns International, Inc., AmeriHost
Franchise System, Inc., Fairfield Resorts, Inc., Resort Condominiums
International, LLC, Avis Rent-A-Car System, Inc. Wright Express LLC,
PHH Vehicle Management Services Inc., Budget Rent-A-Car System, Inc.,
Galileo International, Inc., Cheap Tickets, Inc., WizCom
International, Ltd. and Jackson Hewitts, Inc. businesses (as such
description is incorporated by reference in the Prospectus and as
currently conducted) is referred to herein as the "Marks" and the
Intellectual Property with respect to the Company's Ramada Franchise
Systems, Inc. and Days Inns Worldwide, Inc. (in the United States)
businesses (as such descriptions are incorporated by reference in the
Registration Statement and Prospectus and as currently conducted) are
referred to herein as the "Ramada Marks" and the "Days Inn Marks",
respectively.
(xviii) To the best knowledge of the Company without having made
any inquiry or independent investigation, no labor problem exists with
the employees of any party that licenses a franchise, directly or
indirectly, from a Significant Subsidiary (a "Franchisee") or is
imminent that could reasonably be expected to have a Material Adverse
Effect.
(xix) To the best knowledge of the Company, no dispute exists or
is imminent with any Franchisee that could reasonably be expected to
have a Material Adverse Effect.
(xx) Each Franchisee is such by virtue of being a party to a
franchise contract with either the Company or a Significant Subsidiary
and assuming each such contract has been duly authorized, executed and
delivered by the parties thereto, other than the Company or a
Significant Subsidiary, each such contract constitutes a valid, legal
and binding obligation of each party thereto, enforceable against the
Company or a Significant Subsidiary in accordance with its terms,
except (A) for any one or more of such franchise contracts as would
not have a Material Adverse Effect, and (B) to the extent that
enforcement thereof may be limited by applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xxi) The Company and each Significant Subsidiary have complied
and are currently complying in all material respects with the rules
and regulations of the United States Federal Trade Commission and the
comparable laws, rules and regulations of each state or state agency
applicable to the franchising business of the Company and such
Significant Subsidiary in each state in which the Company or such
Significant Subsidiary is doing business. The Company and each
Significant Subsidiary have complied and are currently complying in
all material respects with the Federal Real Estate Settlement
Procedures Act and the real estate brokerage laws, rules and
regulations of each state or state agency applicable to the real
estate franchising business of the Company and such Significant
Subsidiary in each state in which the Company or such Significant
Subsidiary is doing business.
(xxii) Neither the Company nor any of its Significant
Subsidiaries has taken or will take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the
Securities.
(xxiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(b) Any certificate signed by any officer of the Company or any
subsidiary and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company or by a Subsidiary, as
applicable, to each Underwriter as to the matters covered thereby.
Section 2. Purchase and Sale. (a) On the basis of the representations and
warranties herein contained (except as may be otherwise specified in Schedule
II) and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price to the
Underwriters set forth in Schedule II, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of, the Securities
shall be made at the date, time and location specified in Schedule II, or at
such other date, time or location as shall be agreed upon by the Company and
the Underwriters, or as shall otherwise be provided in Section 11 (such date
and time of payment and delivery being herein called the "Closing Time").
Unless otherwise specified in Schedule II, payment shall be made to the
Company by you by wire or bank transfer of same day funds payable to the
account of the Company, against delivery to you for the respective accounts of
the several Underwriters of the Securities. Such Securities shall be in such
authorized denominations and registered in such names as you may request in
writing at least two full business days before the Closing Time. Such
Securities, which may be in temporary form, will be made available in New York
City for examination and packaging by you not later than 10:00 A.M. on the
business day prior to the Closing Time.
(c) It is understood that each Underwriter has authorized you, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Securities that it has agreed to purchase. You, individually
and not as Representatives, may (but shall not be obligated to) make payment
of the purchase price for the Securities to be purchased by any Underwriter
whose payments shall not have been received by the Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company
will prepare a Prospectus Supplement that complies with the 1933 Act and the
1933 Act Regulations and that sets forth the principal amount of the
Securities and their terms not otherwise specified in the Indenture, the name
of each Underwriter participating in the offering and the principal amount of
the Securities that each severally has agreed to purchase, the name of each
Underwriter, if any, acting as representative of the Underwriters in
connection with the offering, the price at which the Securities are to be
purchased by the Underwriters from the Company, any initial public offering
price, any selling concession and reallowance any delayed delivery
arrangements and such other information as you and the Company deem
appropriate in connection with the offering of the Securities. The Company
will promptly transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of the Prospectus as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and file with the Commission, subject to Section 3(f), such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will,
subject to Section 3(f), file all documents required to be filed with the
Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will
inform you of its intention to file any amendment to the Registration
Statement or any supplement or revision to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise; and the Company will furnish you with
copies of any such amendment or supplement at a reasonable time in advance of
filing; and will not file any such documents to which the Underwriters or
their counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, the Company will
notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment to the Registration Statement,
(ii) of the filing of any supplement to the Prospectus, (iii) of the receipt
of any comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by
the Commission for any amendment to the Registration Statement or any
supplement to the Prospectus or for additional information relating thereto or
to any document incorporated by reference in the Prospectus and (v) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the institution or
threatening of any proceeding for any of such purposes. The Company will use
every reasonable effort to prevent the issuance of any such stop order or of
any order suspending such qualification and, if any such order is issued, to
promptly obtain the lifting thereof.
(f) The Company has furnished or will, upon request, furnish to you,
without charge, one signed copy of the Registration Statement (as originally
filed), of any Rule 462(b) Registration Statement, and of all amendments
thereto, whether filed before or after the Registration Statement became
effective (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) (through the end of the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities) and
conformed copies of all consents and certificates of experts, as you may
reasonably request.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days (or 90 days, in the case of
a period that is also the Company's fiscal year) after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations), covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(i) During the period beginning on the date hereof and continuing to
and including the Closing Time, the Company will not, directly or indirectly,
offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any debt
securities of or guaranteed by the Company which are substantially similar to
the Securities without the prior consent of the Underwriters.
Section 4. Payment of Expenses. The Company will pay and bear all costs and
expenses incident to the performance of its obligations under this Agreement,
including, without limitation, (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus supplements and
the Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (b) the printing and
distribution of this Agreement, any agreement among Underwriters, the
Indenture, and such other documents as may be required in connection with the
offering purchase, sale and delivery of the Securities, (c) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Securities under the applicable
securities laws, (f) any fees charged by rating agencies for rating the
Securities, (g) the reasonable fees and disbursements of counsel in connection
with the Blue Sky survey and (h) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee, in connection
with the Indenture and the Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or Section 10(a)(i), the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, incurred by
them in connection with the public offering of the Securities.
Section 5. Conditions of the Underwriters' Obligations. Except as otherwise
provided in Schedule II hereto, the obligations of the several Underwriters to
purchase and pay for the Securities that they have respectively agreed to
purchase hereunder are subject to (i) the accuracy of the representations and
warranties of the Company contained herein or in certificates of the Company's
officers delivered pursuant to the provisions hereof, (ii) the performance by
the Company of its obligations hereunder, (iii) the delivery to the
Underwriters at the Closing Time by the Company of all of the Securities and
(iv) the following further conditions:
(a) The Registration Statement has become effective, including any
Rule 462(b) Registration Statement, and at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to your knowledge or the knowledge of the
Company, shall be contemplated by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel for the Underwriters.
(b) At the Closing Time, you shall have received a signed opinion of
Eric J. Bock, Executive Vice President, Law and Corporate Secretary of the
Company, and a signed opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel for the Company, each dated as of the Closing Time, in form
and substance reasonably satisfactory to counsel for the Underwriters as set
forth on Exhibits A and B attached hereto.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company, as the case may be, and certificates
of public officials; provided that such certificates have been delivered to
the Underwriters.
In giving the opinions referred to in above, such counsel may rely, as
to all matters governed by the laws of jurisdictions other than those in which
they are expert, upon opinions of other counsel who shall be counsel
reasonably satisfactory to counsel for the Underwriters, in which case the
opinion shall state that they believe you and they are justified and entitled
to so rely.
(c) At the Closing Time, you shall have received the favorable opinion
of Shearman & Sterling, counsel for the Underwriters, dated as of the Closing
Time.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the 1939 Act Regulations, the Company shall have complied in all material
respects with Rule 430A (if it shall have elected to rely thereon) and (A) the
Registration Statement, as it may then be amended or supplemented, shall not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) the Prospectus, as it may be amended or supplemented,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (ii) there
shall not have been, since the respective dates as of which information is
given in the Registration Statement, any material adverse change in the
condition, financial or otherwise, earnings, business affairs or business
prospects of the Company and its Significant Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business,
financial or otherwise, (iii) no action, suit or proceeding shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Significant Subsidiary that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Significant Subsidiary before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding would materially adversely affect the financial condition, earnings,
business affairs or business prospects of the Company and its Significant
Subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) the Company shall have complied in all material respects with
all agreements and satisfied in all material respects all conditions included
herein on its part to be performed and satisfied at or prior to the Closing
Time and (v) the other representations and warranties of the Company set forth
in Section 1(a) shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate of
the President or an Executive Vice President and the Chief Financial Officer
of the Company, dated as of the Closing Time, to such effect.
(e) You shall have received a letter or letters from the Accountants
at the date hereof in form and substance reasonably satisfactory to the
Underwriters, and a letter or letters to be delivered at the Closing Time
reaffirming the statements made in each such letter or letters, except that
the inquiries and procedures specified therein shall have been carried out to
a specified date not more than five days prior to the Closing Time.
(f) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Time, there shall not have been any decrease in rating
accorded any of the Company's securities, including the Securities, by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act Regulations, and no
such organization shall have publicly announced that it has under surveillance
or review, without indicating an improvement, in its rating of the Securities
or any securities of the Company.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company
at or prior to the Closing Time in connection with the authorization, issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to you and to counsel for the Underwriters.
(h) If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
this Agreement may be terminated by you on notice to the Company at any time
at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4
herein. Notwithstanding any such termination, the provisions of Sections 7, 8
and 9 shall remain in effect.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter, as the case may be,
within the meaning of Section 15 of the 1933 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
including fees and disbursements of counsel chosen by you, reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
(iv) provided, however, that this indemnity agreement does not
apply to any loss, liability, claim, damage or expense to the extent
arising out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the
Prospectus (or any amendment or supplement thereto); and provided,
further, however, that the foregoing indemnification with respect to
any preliminary prospectus supplement shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or
liabilities purchased any of the Securities if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if such is
required by the 1933 Act, at or prior to the written confirmation of
the sale of such Securities to such person and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability. The Company and the
Underwriters acknowledge that the following statements set forth in
the Prospectus Supplement constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the
Prospectus Supplement: (a) the statements set forth in last paragraph
of the cover page regarding delivery of the Securities, (b) the
statements set forth in the second sentence of the first paragraph on
page i with respect to the Underwriters only, and (c) under the
heading "Underwriting" (x) the sentences related to concessions and
reallowances, (y) the paragraph related to stabilization, syndicate
covering transactions and penalty bids, and (z) the fourth paragraph
immediately following the table showing the underwriting discounts and
commission.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act, and of Section 20 of the 1934 Act, from
and against any and all loss, liability, claim, damage and expense described
in the indemnity agreement in Section 6(a), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated in
writing by the Underwriters. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
Section 7. Contribution. If the indemnification provided for in Sections 6(a)
and 6(b) is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, then each indemnifying party
under such paragraph (it being understood that an indemnifying party is one
who would have had an obligation to provide indemnification pursuant to
Section 6 had such indemnification been enforceable), in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect (A) the
relative benefits received by the Underwriters, and (B) that the Company is
responsible for the balance or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the allocation referred to in clause (i)above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective number of Securities they have purchased hereunder, and not
joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
For purposes of this Section 7, each director and officer of each Underwriter,
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contributions as each Underwriter, and each director and officer of
the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution at the
Company.
Section 8. Representations, Warranties and Agreements to Survive Delivery. The
representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Underwriter or any
person who controls the Company or any Underwriter within the meaning of
Section 15 of the 1933 Act and will survive delivery of and payment for the
Securities.
Section 9. Termination of Agreement
(a) You may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Time (i) if there has been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the financial condition, earnings,
business affairs or business prospects of the Company and its Significant
Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or any outbreak
of hostilities or escalation thereof or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Securities or enforce contracts for
the sale of the Securities or (iii) if trading in any securities of the
Company has been suspended by the Commission, the New York Stock Exchange or
any other exchange or quotation system on which securities of the Company are
listed, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange or in the over-the-counter market has been suspended,
or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices for securities have been required, by such exchange or by order of
the Commission or any other governmental authority, or (iv) if a banking
moratorium has been declared by either federal, New Jersey or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 herein. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities that it
or they are obligated to purchase (the "Defaulted Securities"), you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased
pursuant to this Agreement, the non-defaulting Underwriters shall be obligated
to purchase the full amount thereof in the proportions that their respective
underwriting obligation proportions bear to the underwriting obligation
proportions (as defined below) of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to this Agreement, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Time or the Delivery Date, as applicable for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered, mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed as set forth in Schedule I. Notices to the
Company shall be directed to it at 9 West 57th Street, New York, NY 10019,
attention of Eric J. Bock, Executive Vice President, Law and Corporate
Secretary.
Section 12. Parties. This Agreement is made solely for the benefit of the
several Underwriters, the Company and, to the extent expressed, any person who
controls the Company or any of the Underwriters within the meaning of Section
15 of the 1933 Act, and the directors of the Company, its officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 11, no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser, as such purchaser, from any Underwriter of the Securities. If there
are two or more Underwriters, all of their obligations hereunder are several
and not joint.
Section 13. Governing Law and Time. This Agreement shall be governed by the
laws of the State of New York. Specified times of the day refer to New York
City time.
Section 14. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
Section 15. Headings. All headings of the sections and subparts thereof of
this Agreement are for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
CENDANT CORPORATION
By: /s/ Eric J. Bock
_________________________
Name: Eric J. Bock
Title: Executive Vice
President, Law and
Corporate Secretary
Confirmed and Accepted, as of the date first above written:
J.P. MORGAN SECURITIES INC.
By: /s/ Therese Esperdy
_____________________
Name: Therese Esperdy
Title: Managing Director
SALOMON SMITH BARNEY INC.
By: /s/ Scott R. White
_____________________
Name: Scott R. White
Title: Director
For themselves and the other Underwriters
named in Schedule I hereto
SCHEDULE I
to Underwriting
Agreement dated
January 8, 2003
CENDANT CORPORATION
Underwriter Principal amount of Principal amount of
6.250% Senior Notes 7.375% Senior Notes
purchased purchased
J.P. Morgan Securities Inc. $280,000,000 $420,000,000
Salomon Smith Barney Inc. 280,000,000 420,000,000
Banc of America 34,286,000 51,429,000
Securities LLC
Banc One Capital 34,286,000 51,429,000
Markets, Inc.
Barclays Capital Inc. 34,286,000 51,429,000
Credit Lyonnais 34,286,000 51,429,000
Securities (USA) Inc.
Scotia Capital (USA) 34,286,000 51,428,000
Inc.
The Royal Bank of 34,285,000 51,428,000
Scotland plc
Wachovia Securities, 34,285,000 51,428,000
Inc.
Total $800,000,000 $1,200,000,000
SCHEDULE II
to Underwriting
Agreement
dated January 8, 2003
CENDANT CORPORATION
6.250% Senior Notes due 2008
Principal amount to be issued: $800,000,000
Interest rate: 6.250% per annum, payable semiannually
Interest accrues from: January 13, 2003
Date of maturity: January 15, 2008
Redemption provisions: Make-whole of T + 45 bps
Sinking fund requirements: None
Initial public offering price: 99.484% of the principal amount plus
accrued interest from the date of
issuance of the Securities.
Purchase price: 98.884% of the principal amount plus
accrued interest from the date of
issuance of the Securities to the date of
delivery (payable in same day funds)
Closing date, time and location: January 13, 2003, 9:00 a.m., New York
City time, Shearman & Sterling, 599
Lexington Avenue, New York NY 10022
7.375% Senior Notes due 2013
Principal amount to be issued: $1,200,000,000
Interest rate: 7.375% per annum, payable semiannually
Interest accrues from: January 13, 2003
Date of maturity: January 15, 2013
Redemption provisions: Make-whole of T + 50 bps
Sinking fund requirements: None
Initial public offering price: 99.096% of the principal amount plus
accrued interest from the date of
issuance of the Securities.
Purchase price: 98.446% of the principal amount plus
accrued interest from the date of
issuance of the Securities to the date of
delivery (payable in same day funds).
Closing date, time and location: January 13, 2003, 9:00 a.m., New York
City time, Shearman & Sterling, 599
Lexington Avenue, New York NY 10022
Exhibit A
FORM OF OPINION OF ERIC BOCK, SENIOR EXECUTIVE PRESIDENT, LAW AND
CORPORATE SECRETARY OF THE COMPANY
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth above, I am of the opinion
that:
(i) The Company has been incorporated and is validly
existing as a corporation under the laws of the State of Delaware.
(ii) The Company has corporate power and authority (i) to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and (ii)
to enter into this Agreement and the Indenture and to perform its
obligations under, or as contemplated under, each thereof.
(iii) The Company is qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect.
(iv) The Company has authorized capital stock as set forth
in the Prospectus (except for subsequent issuances, if any, pursuant
to incentive compensation plan, employee benefit plan or dividend
reinvestment and stock purchase plan transactions), and all of the
issued and outstanding shares of common stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder.
(v) Each Significant Subsidiary (as such term is defined in
clauses (1) and (2) of Rule 1-02(w) of Regulation S-X promulgated
under the 1933 Act) is duly organized and is validly existing and in
good standing under the laws of the jurisdiction of its incorporation
with corporate power and corporate authority under such laws to own,
lease and operate its properties and conduct its business. Each
Significant Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be
in good standing would not have a Material Adverse Effect. Except as
otherwise stated in the Prospectus, all of the outstanding shares of
capital stock of each Significant Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable
and are owned by the Company, directly or through one or more
Significant Subsidiaries, free and clear of any lien, except for such
liens as are not, individually or in the aggregate, material to the
Company and its Significant Subsidiaries, considered as one
enterprise.
(vi) Each of the documents incorporated by reference in the
Registration Statement and the Prospectus at the time they were filed
or last amended (other than the financial statements and the notes
thereto, the financial schedules, and any other financial data
included or incorporated by reference therein, as to which I need
express no belief), complied as to form in all material respects with
the requirements of the 1934 Act and the 1934 Act Rules and
Regulations, as applicable.
(vii) The Securities have been authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement, will be
validly issued and fully paid and non-assessable.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The offer of the Securities as contemplated herein and
in the Registration Statement and the Prospectus, the execution,
delivery and performance of this Agreement, the Indenture and the
Securities, and the consummation of the transactions contemplated
herein, therein and in the Registration Statement and Prospectus
(including the issuance and sale of the Securities and the use of
proceeds from the sale of the Securities as described in the
Registration Statement and Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations
hereunder and thereunder, have been authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of any of the terms or provisions of, or
constitute a default or Repayment Event under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary
pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of
their assets, properties, or operations (except for such violations
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company or any Significant Subsidiary.
(x) There are no statutes required to be described in or
incorporated by reference in the Registration Statement and the
Prospectus that are not described or incorporated by reference; and
there are no legal or governmental proceedings pending or, to my
knowledge, threatened that are required to be disclosed or
incorporated by reference in the Registration Statement and
Prospectus, other than those disclosed or incorporated by reference
therein.
(xi) There are no contracts, indentures, mortgages,
agreements, notes, leases or other instruments required to be
described or referred to or incorporated by reference in the
Registration Statement and the Prospectus other than those described
or referred to or incorporated by reference therein; and the
descriptions thereof or references thereto are true and correct in
all material respects.
Moreover, nothing has come to my attention that causes me to believe that the
Registration Statement, on the original effective date of the Registration
Statement, on the date of the filing of any annual report on Form 10-K or Form
10-K/A after the filing of the Registration Statement, or on the date of this
Agreement, contained or contains an untrue statement of a material fact or
omitted or omits to state material fact necessary, in light of the
circumstances under which they were made, to make the statements therein not
misleading, or that the Prospectus, or any amendment or supplement thereto, at
the time the Prospectus Supplement was issued or at the date hereof, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that I express no opinion or belief with respect to the financial statements,
schedules and other financial or statistical data included or incorporated by
reference therein or excluded therefrom.
Exhibit B
FORM OF OPINION OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth above, we are of the opinion
that:
(i) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent enforcement thereof
might be limited by (i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
sought in equity or at law);
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Securities have been duly authorized by the
Company and, when duly authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms and will be entitled to the benefits
of the Indenture, except to the extent enforcement thereof might be
limited by (i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered sought in equity or at law);
(iv) The statements included in the Registration Statement
and the Prospectus under the captions "Description of Notes," insofar
as such statements purport to summarize certain provisions of
documents referred to therein, fairly summarize such provisions in
all material respects;
(v) The statements set forth in the Base Prospectus under
the captions "Description of the Debt Securities" and "General
Description of Capital Stock," insofar as such statements purport to
summarize certain provisions of the documents referred to therein,
fairly summarize such provisions in all material respects.
(vi) The Registration Statement, as of the date of filing of
the Company's Annual Report on Form 10-K/A for the year ended
December 31, 2001, and the Prospectus, as of the date of the
Prospectus Supplement, appeared on their face to be appropriately
responsive in all material respects to the requirements of the 1933
Act and the Rules and Regulations, except that in each case we do not
express any opinion as to the financial statements and schedules and
other financial data included or incorporated by reference therein or
excluded therefrom, or the exhibits to the Registration Statement,
including the Statement of Eligibility on Form T-1, and, except to
the extent expressly stated in paragraphs (iv) and (v) above, we do
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus.
(vii) The execution, delivery and performance of this
Agreement, the Securities or the Indenture does not require any
authorization, approval, consent, order, registration or
qualification of any court or governmental authority or agency to be
made or obtained by the Company.
(viii) The Company is not and, solely after giving effect to
the offering and the sale of the Securities and the application of
the proceeds thereof described in the Registration Statement and
Prospectus, will not be subject to registration and regulation as an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
In addition, in connection with the preparation of the Registration Statement
and the Prospectus, we have participated in conferences with officers and
representatives of the Company, in-house counsel for the Company,
representatives of the independent accountants of the Company, and you and
your counsel at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed. We did not participate
in the preparation of the documents filed by the Company pursuant to the 1934
Act and incorporated by reference into the Prospectus as of the Closing Time
but have, however, reviewed such documents and discussed the business and
affairs of the Company with officers and other representatives of the Company.
Although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Prospectus and we have made no independent check or verification thereof,
other than to the extent specified in paragraph (iv) above, on the basis of
the foregoing, no facts have come to our attention that have led us to believe
that the Registration Statement, as of the date of the Company's Annual Report
on Form 10-K/A for the year ended December 31, 2001, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus, as of the date of the Prospectus Supplement and as of
the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made not misleading, except that we express no opinion or belief with respect
to the financial statements, schedules and other financial data included or
incorporated by reference therein or excluded therefrom or the exhibits to the
Registration Statement.
Very truly yours,
Exhibit 4.1
----------------------------------------------------------------
CENDANT CORPORATION
TO
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
Trustee
----------------------------------------------------------------
Indenture
Dated as of January 13, 2003
---------------------------------------
CONVERTIBLE AND NON-CONVERTIBLE
SENIOR DEBT SECURITIES
----------------------------------------------------------------
CENDANT CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of January 13, 2003
Trust Indenture
Act Section Indenture
- --------------- ---------
ss. 310(a)(1) ................................................. 6.07(a)
(a)(2) ................................................. 6.07(a)
(b) ................................................. 6.08
ss. 312(c) ................................................. 7.01
ss. 314(a) ................................................. 7.03
(a)(4) ................................................. 10.04
(c)(1) ................................................. 1.02
(c)(2) ................................................. 1.02
(e) ................................................. 1.02
ss. 315(b) ................................................. 6.01
ss. 316(a)(last
sentence) ................................................. 1.01 ("Outstanding")
(a)(1)(A) ................................................. 5.02, 5.12
(a)(1)(B) ................................................. 5.13
(b) ................................................. 5.08
(c) ................................................. 1.04(e)
ss. 317(a)(1) ................................................. 5.03
(a)(2) ................................................. 5.04
(b) ................................................. 10.03
ss. 318(a) ................................................. 1.11
____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Table of Contents1
Page
PARTIES..............................................................................1
RECITALS OF THE COMPANY..............................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION................................................................1
Section 1.01 Definitions..................................................1
Section 1.02 Compliance Certificates and Opinions........................10
Section 1.03 Form of Documents Delivered to Trustee......................11
Section 1.04 Acts of Holders.............................................11
Section 1.05 Notices, Etc. to Trustee and Company........................13
Section 1.06 Notice to Holders; Waiver...................................13
Section 1.07 Effect of Headings and Table of Contents....................15
Section 1.08 Successors and Assigns......................................15
Section 1.09 Separability Clause.........................................15
Section 1.10 Benefits of Indenture.......................................15
Section 1.11 Governing Law...............................................15
Section 1.12 Legal Holidays..............................................15
Section 1.13 Trust Indenture Act.........................................16
ARTICLE II SECURITY FORMS...........................................................16
Section 2.01 Forms Generally.............................................16
Section 2.02 Form of Trustee's Certificate of Authentication.............16
Section 2.03 Securities Issuable in Global Form..........................17
ARTICLE III THE SECURITIES..........................................................18
Section 3.01 Amount Unlimited; Issuable in Series........................18
Section 3.02 Denominations...............................................21
Section 3.03 Execution, Authentication, Delivery and Dating..............21
Section 3.04 Temporary Securities........................................24
Section 3.05 Registration, Registration of Transfer and Exchange.........25
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities............27
Section 3.07 Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.....................................28
Section 3.08 Persons Deemed Owners.......................................30
Section 3.09 Cancellation................................................31
Section 3.10 Computation of Interest.....................................31
Section 3.11 Currency and Manner of Payments in Respect of Securities....31
Section 3.12 Appointment and Resignation of Successor Exchange Rate
Agent.......................................................35
ARTICLE IV SATISFACTION AND DISCHARGE...............................................35
Section 4.01 Satisfaction and Discharge of Indenture.....................35
Section 4.02 Application of Trust Money..................................37
ARTICLE V REMEDIES..................................................................37
Section 5.01 Events of Default...........................................37
Section 5.02 Acceleration of Maturity; Rescission and Annulment..........38
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................39
Section 5.04 Trustee May File Proofs of Claim............................40
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.41
Section 5.06 Application of Money Collected..............................41
Section 5.07 Limitation on Suits.........................................41
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................42
Section 5.09 Restoration of Rights and Remedies..........................43
Section 5.10 Rights and Remedies Cumulative..............................43
Section 5.11 Delay or Omission Not Waiver................................43
Section 5.12 Control by Holders..........................................43
Section 5.13 Waiver of Past Defaults.....................................44
Section 5.14 Waiver of Stay or Extension Laws............................44
ARTICLE VI THE TRUSTEE..............................................................44
Section 6.01 Notice of Defaults..........................................44
Section 6.02 Certain Rights of Trustee...................................45
Section 6.03 Trustee Not Responsible for Recitals or Issuance of
Securities..................................................46
Section 6.04 May Hold Securities.........................................46
Section 6.05 Money Held in Trust.........................................46
Section 6.06 Compensation and Reimbursement..............................46
Section 6.07 Corporate Trustee Required; Eligibility;
Conflicting Interest........................................47
Section 6.08 Resignation and Removal; Appointment of Successor...........47
Section 6.09 Acceptance of Appointment by Successor......................49
Section 6.10 Merger, Conversion, Consolidation or Succession to Business.50
Section 6.11 Appointment of Authenticating Agent.........................50
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................52
Section 7.01 Disclosure of Names and Addresses of Holders................52
Section 7.02 Reports by Trustee..........................................52
Section 7.03 Reports by Company..........................................52
ARTICLE VIII MERGER, CONSOLIDATION AND SALE OF ASSETS...............................53
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms........53
Section 8.02 Successor Person Substituted................................54
ARTICLE IX SUPPLEMENTAL INDENTURES..................................................54
Section 9.01 Supplemental Indentures Without Consent of Holders..........54
Section 9.02 Supplemental Indentures with Consent of Holders.............55
Section 9.03 Execution of Supplemental Indentures........................56
Section 9.04 Effect of Supplemental Indentures...........................57
Section 9.05 Conformity with Trust Indenture Act.........................57
Section 9.06 Reference in Securities to Supplemental Indentures..........57
Section 9.07 Notice of Supplemental Indentures...........................57
ARTICLE X COVENANTS.................................................................57
Section 10.01 Payment of Principal, Premium, if any, and Interest........57
Section 10.02 Maintenance of Office or Agency............................57
Section 10.03 Money for Securities Payments to Be Held in Trust..........59
Section 10.04 Statement as to Compliance.................................60
Section 10.05 Additional Amounts.........................................60
Section 10.06 Payment of Taxes and Other Claims..........................61
Section 10.07 Corporate Existence........................................61
Section 10.08 Waiver of Certain Covenants................................61
ARTICLE XI REDEMPTION OF SECURITIES.................................................62
Section 11.01 Applicability of Article...................................62
Section 11.02 Election to Redeem; Notice to Trustee......................62
Section 11.03 Selection by Trustee of Securities to Be Redeemed..........62
Section 11.04 Notice of Redemption.......................................63
Section 11.05 Deposit of Redemption Price................................64
Section 11.06 Securities Payable on Redemption Date......................64
Section 11.07 Securities Redeemed in Part................................65
ARTICLE XII SINKING FUNDS...........................................................65
Section 12.01 Applicability of Article...................................65
Section 12.02 Satisfaction of Sinking Fund Payments with Securities......65
Section 12.03 Redemption of Securities for Sinking Fund..................66
ARTICLE XIII REPAYMENT AT OPTION OF HOLDERS..........................................67
Section 13.01 Applicability of Article...................................67
Section 13.02 Repayment of Securities....................................67
Section 13.03 Exercise of Option.........................................67
Section 13.04 When Securities Presented for Repayment Become
Due and Payable............................................67
Section 13.05 Securities Repaid in Part..................................68
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE......................................69
Section 14.01 Company's Option to Effect Defeasance or
Covenant Defeasance........................................69
Section 14.02 Defeasance and Discharge...................................69
Section 14.03 Covenant Defeasance........................................69
Section 14.04 Conditions to Defeasance or Covenant Defeasance............70
Section 14.05 Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions...........71
Section 14.06 Reinstatement..............................................72
ARTICLE XV MEETINGS OF HOLDERS OF SECURITIES........................................72
Section 15.01 Purposes for Which Meetings May Be Called..................72
Section 15.02 Call, Notice and Place of Meetings.........................73
Section 15.03 Persons Entitled to Vote at Meetings.......................73
iii
Section 15.04 Quorum; Action.............................................73
Section 15.05 Determination of Voting Rights; Conduct and
Adjournment of Meetings....................................74
Section 15.06 Counting Votes and Recording Action of Meetings............75
EXHIBIT A-1 FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE
BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE
PARTIES
INDENTURE, dated as of January 13, 2003, between CENDANT
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office
at 9 West 57th Street, New York, New York, and THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK, a New York banking corporation duly organized and
existing under the laws of the State of New York, as Trustee (herein called
the "Trustee") having its principal office at One Liberty Plaza, 23rd Floor,
New York, New York 10006.
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"), which may or may not be convertible into or exchangeable for
any securities of any Person (including the Company), to be issued in one or
more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Amounts" has the meaning specified in Section 10.05.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security except a Registered
Security.
"Beneficial Owner" of shares of Capital Stock means, with
respect to any Person, any such shares:
(a) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the sole or shared right to vote
or dispose of or has "beneficial ownership" of (as determined pursuant
to Rule 13d-3 promulgated under the Exchange Act or pursuant to any
successor provision), including, but not limited to, pursuant to any
agreement, arrangement or understanding, whether or not in writing;
provided, that a Person shall not be deemed the "Beneficial Owner" of,
or to "Beneficially Own", any security under this subparagraph as a
result of an agreement, arrangement or understanding to vote such
security that both (y) arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and
in accordance with, the applicable provisions of the rules and
regulations promulgated under the Exchange Act and (z) is not reportable
by such person on Schedule 13D promulgated under the Exchange Act (or
any comparable or successor report) without giving effect to any
applicable waiting period, or Exchange Act (or any comparable or
successor report) without giving effect to any applicable waiting
period; or
(b) which are Beneficially Owned, directly or indirectly, by any
other person (or any Affiliate or Associate thereof) with which such
person (or any of such person's Affiliates or Associates) has any
agreement, arrangement or understanding, whether or not in writing, for
the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (a) above)
or disposing of any Capital Stock;
provided, that (i) no director or officer of the Corporation (nor any
Affiliate or Associate of any such director or officer) shall, solely by
reason of any or all of such directors or officers acting in their
capacities as such, be deemed the "Beneficial Owner" of or to
"Beneficially Own" any shares of Capital Stock that are Beneficially
Owned by any other such director or officer, and (ii) no person shall be
deemed the "Beneficial Owner" of or to "Beneficially Own" any shares of
Capital Stock held in any voting trust, any employee stock ownership
plan or any similar plan or trust if such person does not possess the
right to vote, to direct the voting of or to be consulted with respect
to the voting of such shares.
For the purposes of this definition, the terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms in
Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as
amended (the term "registrant" in said Rule 12b-2 meaning in this case
the Company).
"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 (or a committee of the Board of Directors empowered
to exercise all of the powers of the Board of Directors) and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York or in the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock of the Company or any Subsidiary.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 3.04.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office on the date of execution of this
Indenture is located at One Liberty Plaza, New York, New York 10006, except
that with respect to presentation of Securities for payment or for
registration of transfer or exchange, such term shall mean the office or
agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation, the Euro,
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"Currency Conversion Date" has the meaning specified in Section
3.11(d).
"Currency Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued such
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of transactions, or (ii)
any currency unit (or composite currency) for the purposes for which it was
established.
"Debt" means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.11(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.11(f).
"Election Date" has the meaning specified in Section 3.11(h).
"Euro" means the currency introduced at the start of the third
stage of European economic and monetary union pursuant to the Treaty
establishing the European Community (signed in Rome on 25th March, 1957) as
amended by the Treaty on European Union (signed in Maastricht on 7th February,
1991) and as further amended by the Treaty of Amsterdam.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Date" has the meaning specified in Section 3.04.
"Exchange Rate Agent" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, a New York Clearing House bank, designated pursuant
to Section 3.01 or Section 3.12.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
3.02 in the relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate, sent (in the case of a
telex) or signed (in the case of a certificate) by the Treasurer, any Vice
President or any Assistant Treasurer of the Company.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 3.01, securities which
are (i) direct obligations of the government which issued the Currency in
which the Securities of a particular series are payable or (ii) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the government which issued the Currency in which the
Securities of such series are payable, the payment of which is unconditionally
guaranteed by such government, which, in either case, are full faith and
credit obligations of such government payable in such Currency and are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of
interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person
in whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of any particular series of Securities established
as contemplated by Section 3.01; provided, however, that, if at any time more
than one Person is acting as Trustee under this instrument, "Indenture" shall
mean, with respect to any one or more series of Securities for which such
Person is Trustee, this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities for which such Person is
Trustee established as contemplated by Section 3.01, exclusive, however, of
any provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one
or more indentures supplemental hereto executed and delivered after such
Person had become such Trustee but to which such Person, as such Trustee, was
not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity 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 at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issue Date" with respect to a Security means the date of first
issuance of such Security under this Indenture.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or
security interest except that a Lien shall not mean any license or right to
use intellectual property of the Company or a Subsidiary granted by the
Company or a Subsidiary.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.01, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit and Dollars
or such Foreign Currency calculated by the method specified pursuant to
Section 3.01 for the Securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon (New York City time)
buying rate for such Foreign Currency for cable transfers quoted in New York
City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for Dollars or
such purchased Foreign Currency, in each case determined by the Exchange Rate
Agent. Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New York City,
London or another principal market for the Currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any Currency by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such Currency shall be that
upon which a non-resident issuer of securities designated in such Currency
would purchase such Currency in order to make payments in respect of such
securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee.
"Optional Reset Date" has the meaning specified in Section
3.07(b).
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities, except to the extent provided in Sections
14.02 and 14.03, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present
at a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.02, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an Exchange
Rate Officer's Certificate delivered to the Trustee, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (i) above), of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 3.01, and
(iv) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or 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 such other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium,
if any, on) or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any, on) and interest on such Securities are payable as
specified as contemplated by Sections 3.01 and 10.02.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or
a Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupons appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 3.01.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be
repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice- chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.01, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 3.11(c).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, including, without limitation, the certificate of authentication
provided pursuant to Section 3.03, no additional certificate or opinion need
be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 10.04) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, 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, they may, but need not, be
consolidated and form one instrument.
Section 1.04 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article 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
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact
and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership
of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may
also be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or
pursuant to Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to
be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no
such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
Section 1.05 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing 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 Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders
of Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise 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. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical
to mail notice of any event to Holders of Registered Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be sufficient giving of such notice for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 3.01, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and in such other
city or cities as may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of the
first such publication.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.07 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 1.08 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 1.09 Separability Clause.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto,
any Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11 Governing Law.
THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THIS
INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT OF 1939, AS
AMENDED, THAT ARE REQUIRED TO BE PART OF THIS INDENTURE AND SHALL, TO THE
EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
Section 1.12 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest Payment
Date or Redemption Date or sinking fund payment date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
Section 1.13 Trust Indenture Act.
This Indenture is subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
ARTICLE II
SECURITY FORMS
Section 2.01 Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the forms of Securities or coupons of any series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 3.01,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel- engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
Section 2.02 Form of Trustee's Certificate of Authentication.
Subject to Section 6.11, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
The Bank of Nova Scotia Trust Company of
New York, as Trustee
By________________________
Authorized Officer
Section 2.03 Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form,
as specified as contemplated by Section 3.01, then, notwithstanding clause (8)
of Section 3.01, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of Outstanding Securities of such
series from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.03 or Section 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, 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 3.03 or
Section 3.04 has been, or simultaneously is, delivered, any instructions by
the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section
1.02 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.03 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 3.03.
Notwithstanding the provisions of Section 3.07, unless otherwise
specified as contemplated by Section 3.01, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.08 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in
the case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, as specified by the common
depositary for such global securities.
ARTICLE III
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 3.03, set
forth in, or determined in the manner provided in, an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1),
(2) and (17) below), if so provided, may be determined from time to time by
the Company with respect to unissued Securities of the series and set forth in
such Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06,
11.07 or 13.05);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by which
such date or dates shall be determined, and the basis upon which
interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any, on) and any interest on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may
be surrendered for exchange and, if different than the location
specified in Section 1.06, the place or places where notices or demands
to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of
the series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 3.11;
(12) whether the amount of payments of principal of (and
premium, if any, on) or interest on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any, on) and
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency other
than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so payable,
in each case in accordance with, in addition to or in lieu of any of the
provisions of Section 3.11;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) any provisions in modification of, in addition to or in
lieu of the provisions of Article Fourteen that shall be applicable to
the Securities of the series;
(16) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities
of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 3.05, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of the series, and the circumstances under
which and the place or places where such exchanges may be made and if
Securities of the series are to be issuable in global form, the identity
of any initial depository therefor;
(19) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 3.04;
(21) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants or upon the conversion or exchange of other
securities, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 10.05 on the Securities of
the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(24) if the Securities of the series are to be convertible into
or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be so
convertible or exchangeable; or
(25) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 3.03) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need be
issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall
be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations.
All Securities shall be issuable in such denominations as shall
be specified as contemplated by Section 3.01. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued
in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such Series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination
of $5,000.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or a Vice
President. The signature on the Securities or coupons may be the manual or
facsimile signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 3.01, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit A-1 to this Indenture, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered
and the date on which any temporary Security first becomes exchangeable for
such Bearer Security in accordance with the terms of such temporary Security
and this Indenture. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 3.04, the
notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivered in connection with its original issuance of
such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 3.06, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest
rate, maturity date, date of issuance and date from which interest shall
accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications
as such counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons;
(d) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with (except for the
federal securities laws, the Trust Indenture Act of 1939, as amended,
and the securities or blue sky laws of the various states, as to which
no opinion need be expressed) and that authentication and delivery of
such Securities and any coupons and the execution and delivery of the
supplemental indenture, if any, by the Trustee will not violate the
terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary corporate
action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons will
not contravene the articles of incorporation or by-laws of the Company
or result in any violation of any of the terms or provisions of any law
or regulation or of any indenture, mortgage or other agreement known to
such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 3.01 and of the
preceding two paragraphs, if less than all the Securities of any series are to
be issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to the preceding two
paragraphs prior to or at the time of issuance of each Security, but such
documents shall be delivered prior to or at the time of issuance of the first
Security of such series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date
specified as contemplated by Section 3.01.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized, in bearer form
with one or more coupon or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series, upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security;
and provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 3.03. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Without unnecessary delay, but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section
3.01, and, if any combination thereof is so specified, as requested by the
beneficial owner thereof.
Section 3.05 Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as security registrar (the
"Security Registrar") for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities
as contemplated by Section 3.01, Bearer Securities may not be issued in
exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 3.03) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 3.01, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the
same series of any authorized denomination and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be exchanged at
any such office or agency, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons
in default, any such permitted exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 10.02, interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 3.01 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in
any event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged,
such permanent global Security shall be surrendered by the Common Depositary
or such other depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange
for each portion of such permanent global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Security to be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as specified
as contemplated by Section 3.01, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by
the beneficial owner thereof; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and the opening of business at such office or
agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not
involving any transfer.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Securities of any series during a period beginning
at the opening of business 15 days before the day of the selection for
redemption of Securities of that series under Section 11.03 or 12.03 and
ending at the close of business on (A) if Securities of the series are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any
Bearer Security so selected for redemption except that such a Bearer Security
may be exchanged for a Registered Security of that series and like tenor;
provided that such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, to register the transfer of or to exchange any
Security which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security, or, in case any
such mutilated Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
for which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains, or, in case any such destroyed,
lost or stolen Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains, pay such Security or coupon.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 3.07 Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.
(a) Unless otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, interest on any Registered
Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest at
the office or agency of the Company maintained for such purpose pursuant
to Section 10.02; provided, however, that each installment of interest
on any Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 3.08, to the address
of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located in the United States.
Unless otherwise provided as contemplated by Section 3.01 with
respect to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the
extent lawful) at the rate specified in the Securities of such series (such
defaulted interest and, if applicable, interest thereon herein collectively
called "Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and
except, if applicable, as provided in Sections 3.11(b), 3.11(d) and
3.11(e)) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in the manner
provided in Section 1.06, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so given, such
Defaulted Interest shall be paid to the Persons in whose name the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 3.07(b) may be made
applicable to any series of Securities pursuant to Section 3.01 (with
such modifications, additions or substitutions as may be specified
pursuant to such Section 3.01). The interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable)
on any Security of such series may be reset by the Company on the date
or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such
Security by notifying the Trustee of such exercise at least 50 but not
more than 60 days prior to an Optional Reset Date for such Note. Not
later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 1.06, to the Holder of
any such Security a notice (the "Reset Notice") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if
so (i) such new interest rate (or such new spread or spread multiplier,
if applicable) and (ii) the provisions, if any, for redemption during
the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity
Date of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during
the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the
Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 1.06, notice of such higher interest rate (or such
higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and
with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the period
for delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to such Optional Reset Date and except that, if the Holder
has tendered any Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section
3.05, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
Section 3.08 Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any, on) and
(subject to Sections 3.05 and 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall
be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
Section 3.09 Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of by the
Trustee in accordance with its customary procedures and certification of their
disposal delivered to the Company unless by Company Order the Company shall
direct that cancelled Securities be returned to it.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01
with respect to any Securities, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 Currency and Manner of Payments in Respect of
Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any
series not permitting the election provided for in paragraph (b) below
or the Holders of which have not made the election provided for in
paragraph (b) below, and with respect to Bearer Securities of any
series, except as provided in paragraph (d) below, payment of the
principal of (and premium, if any, on) and interest, if any, on any
Registered or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the
case may be, is payable. The provisions of this Section 3.11 may be
modified or superseded with respect to any Securities pursuant to
Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of
principal of (and premium, if any, on) or interest, if any, on such
Registered Securities in any of the Currencies which may be designated
for such election by delivering to the Trustee a written election with
signature guarantees and in the applicable form established pursuant to
Section 3.01, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (but
any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such
change of election may be made with respect to payments to be made on
any Registered Security of such series with respect to which an Event of
Default has occurred or with respect to which the Company has deposited
funds pursuant to Article Four or with respect to which a notice of
redemption has been given by the Company or a notice of option to elect
repayment has been sent by such Holder or such transferee). Any Holder
of any such Registered Security who shall not have delivered any such
election to the Trustee not later than the close of business on the
applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Section 3.11(a).
The Trustee shall notify the Exchange Rate Agent as soon as practicable
after the Election Date of the aggregate principal amount of Registered
Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.01, if the
election referred to in paragraph (b) above has been provided for
pursuant to Section 3.01, then, unless otherwise specified pursuant to
Section 3.01, not later than the fourth Business Day after the Election
Date for each payment date for Registered Securities of any series, the
Exchange Rate Agent will deliver to the Company a written notice
specifying, in the Currency in which Registered Securities of such
series are payable, the respective aggregate amounts of principal of
(and premium, if any, on) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to
which the Holders of Registered Securities of such series shall have
elected to be paid in another Currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above has been
provided for pursuant to Section 3.01 and if at least one Holder has
made such election, then, unless otherwise specified pursuant to Section
3.01, on the second Business Day preceding such payment date the Company
will deliver to the Trustee for such series of Registered Securities an
Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise
specified pursuant to Section 3.01, the Dollar or Foreign Currency
amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange
Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Currency Conversion Event occurs with respect to a
Foreign Currency in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to
paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any, on) and interest, if any, on the
applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used
(the "Currency Conversion Date"), the Dollar shall be the Currency of
payment for use on each such payment date. Unless otherwise specified
pursuant to Section 3.01, the Dollar amount to be paid by the Company to
the Trustee and by the Trustee or any Paying Agent to the Holders of
such Securities with respect to such payment date shall be, in the case
of a Foreign Currency other than a currency unit, the Dollar Equivalent
of the Foreign Currency or, in the case of a currency unit, the Dollar
Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g)
below.
(e) Unless otherwise specified pursuant to Section 3.01, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b)
above, and a Currency Conversion Event occurs with respect to such
elected Currency, such Holder shall receive payment in the Currency in
which payment would have been made in the absence of such election; and
if a Currency Conversion Event occurs with respect to the Currency in
which payment would have been made in the absence of such election, such
Holder shall receive payment in Dollars as provided in paragraph (d)
above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Currency Conversion
Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into Dollars
at the Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(h) For purposes of this Section 3.11 the following terms shall
have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Currency Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the Euro.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, including, but not
limited to, the Euro, on the Currency Conversion Date. If after the
Currency Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the same
proportion. If after the Currency Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in
such single Currency, and such amount shall thereafter be a Specified
Amount and such single Currency shall thereafter be a Component
Currency. If after the Currency Conversion Date any Component Currency
shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent value of the Specified Amount of such former Component
Currency at the Market Exchange Rate immediately before such division
and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the
Currency Conversion Date of the relevant currency unit, including, but
not limited to, the Euro, a Currency Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs
with respect to any Component Currency of such currency unit and is
continuing on the applicable Valuation Date, the Specified Amount of
such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Currency Conversion Date of such
Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to clause (13) of Section 3.01 by which
the written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such
decision or determination.
In the event that the Company determines in good faith that a
Currency Conversion Event has occurred with respect to a Foreign Currency, the
Company will immediately give written notice thereof to the Trustee and to the
Exchange Rate Agent (and the Trustee will promptly thereafter give notice in
the manner provided for in Section 1.06 to the affected Holders) specifying
the Currency Conversion Date. In the event the Company so determines that a
Currency Conversion Event has occurred with respect to the Euro or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 1.06 to the affected Holders) specifying the Currency
Conversion Date and the Specified Amount of each Component Currency on the
Currency Conversion Date. In the event the Company determines in good faith
that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent and shall not otherwise have any duty or obligation to determine
the accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
Section 3.12 Appointment and Resignation of Successor Exchange
Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and
so long as the Securities of any series (i) are denominated in a
Currency other than Dollars or (ii) may be payable in a Currency other
than Dollars, or so long as it is required under any other provision of
this Indenture, then the Company will maintain with respect to each such
series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.01 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of
converting the issued Currency into the applicable payment Currency for
the payment of principal (and premium, if any) and interest, if any,
pursuant to Section 3.11.
(b) No resignation of the Exchange Rate Agent and no appointment
of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company
and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
the Exchange Rate Agent for any cause with respect to the Securities of
one or more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Exchange Rate Agent or Exchange Rate
Agents with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed
with respect to the Securities of one or more or all of such series and
that, unless otherwise specified pursuant to Section 3.01, at any time
there shall only be one Exchange Rate Agent with respect to the
Securities of any particular series that are originally issued by the
Company on the same date and that are initially denominated and/or
payable in the same Currency).
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for and the obligation of the Company to pay any
Additional Amounts as contemplated by Section 10.05) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 3.05, (ii)
Securities and coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.06,
(iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 11.06, and (iv) Securities and coupons of
such series for whose payment money has theretofore been deposited in
trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company, as provided
in Section 10.03) have been delivered to the Trustee for cancellation;
or
(B) all outstanding Securities of such series and, in the case
of (i) or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount,
in the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company deposits with the Trustee cash, non-callable
Government Obligations, or a combination thereof, sufficient to pay all
amounts due and owing on all outstanding Securities and the Company all
other sums payable hereunder; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.06
and to any Authenticating Agent under Section 6.11 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 4.02 and the last
paragraph of Section 10.03 shall survive.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE V
REMEDIES
Section 5.01 Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series, or any related coupon, when such interest or coupon becomes
due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of the Securities of that series and Article Twelve;
or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a default in the
performance, or breach of a covenant or agreement which is specifically
dealt with elsewhere in this Section), 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 aggregate
principal amount of all Outstanding Securities 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) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect or appointing a receiver, liquidator,
assignee, trustee, custodian or 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 unstayed and in effect for a period of 90
consecutive days; or
(6) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other 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
(7) there shall have occurred either a default by the Company
(i) under any instrument or instruments under which there is or may be
secured or evidenced any Debt of the Company (other than the Securities)
having an outstanding principal amount of $50,000,000 (or its foreign
currency equivalent) or more, individually or in the aggregate, that has
caused the holders thereof to declare such Debt to be due and payable
prior to its stated maturity, unless such declaration has been rescinded
within 30 days or (ii) in the payment when due of the principal or
premium, if any, of any bond, debenture, note or other evidence of the
Company's Debt, in each case for money borrowed, or in the payment of
principal under any mortgage, indenture, agreement or instrument under
which there may be issued or by which there may be secured or evidenced
any Debt of the Company for money borrowed, which default for payment of
principal or premium, if any, is in an aggregate principal amount
exceeding $50,000,000 (or its foreign currency equivalent) when such
Indebtedness becomes due and payable (whether at maturity, upon
redemption or acceleration or otherwise), if such default shall continue
unremedied or unwaived for more than 30 Business Days after the
expiration of any grace period or extension of the time for payment
applicable thereto; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4),
(7) or (8) of Section 5.01 with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable. If an
Event of Default described in clause (5) or (6) of Section 5.01 occurs and is
continuing, then the principal amount of all the Debt Securities shall ipso
facto become and be immediately due and payable without declaration or other
act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series and except, if applicable, as provided in
Sections 3.11(b), 3.11(d) and 3.11(e)),
(A) all overdue interest on all Outstanding Securities of
that series (or of all series, as the case may be) and any
related coupons,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as the
case may be) which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities because of an Event
of Default specified in Section 5.01(7) shall have occurred and be continuing,
such declaration of acceleration shall be automatically annulled if the Debt
that is the subject of such Event of Default has been discharged or the
holders thereof have rescinded their declaration of acceleration in respect of
such Debt, and written notice of such discharge or rescission, as the case may
be, shall have been given to the Trustee by the Company and countersigned by
the holders of such Debt or a trustee, fiduciary or agent for such holders,
within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day
period which has not been cured or waived during such period.
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, and interest on any overdue principal (and premium, if any)
and to the extent that payment of such interest is lawful on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
(or of all series, as the case may be) occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series (or of all series, as the case may
be) by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Securities or Indexed Securities as
may be specified in the terms of such series, and interest owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.06;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on) and interest on the Securities
and coupons in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and coupons
for principal (and premium, if any) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto including, without limitation, the Company.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2), (3), (4), (7) or (8) of Section
5.01, or, in the case of any Event of Default described in clause (5) or
(6) of Section 5.01, the Holders of not less than 25% in principal
amount of all Outstanding Securities, 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 at
least a majority or more in principal amount of the Outstanding
Securities of that series in the case of any Event of Default described
in clause (1), (2), (3), (4), (7) or (8) of Section 5.01, or, in the
case of any Event of Default described in clause (5) or (6) of Section
5.01, by the Holders of a majority or more in principal amount of all
Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4), (7) or (8) of Section 5.01, or
of Holders of all Securities in the case of any Event of Default described in
clause (5) or (6) of Section 5.01, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series, in the case
of any Event of Default described in clause (1), (2), (3), (4), (7) or (8) of
Section 5.01, or of Holders of all Securities in the case of any Event of
Default described in clause (5) or (6) of Section 5.01.
Section 5.08 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal of (and
premium, if any, on) and (subject to Section 3.07) interest on, such Security
or payment of such coupon on the respective Stated Maturities expressed in
such Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10 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 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 5.12 Control by Holders.
With respect to the Securities of any series, the Holders of not
less than a majority in principal amount of the Outstanding Securities of such
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, relating to or arising under clause
(1), (2), (3), (4), (7) or (8) of Section 5.01, and, with respect to all
Securities, the Holders of not less than a majority in principal amount of all
Outstanding Securities 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, not relating to or
arising under clause (1), (2), (3), (4), (7) or (8) of Section 5.01, provided
that in each case
(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) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
Section 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority
in principal amount of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any past default
described in clause (1), (2), (3), (4), (7) or (8) of Section 5.01 (or, in the
case of a default described in clause (5) or (6) of Section 5.01, the Holders
of not less than a majority in principal amount of all Outstanding Securities
may waive any such past default), and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any, on) or interest on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.14 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.01 Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of such
default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in
the payment of the principal of (or premium, if any, on) or interest on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series and any
related coupons; and provided further that in the case of any Default of the
character specified in Section 5.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
Section 6.02 Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 6.03 Trustee Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except for
the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility and Qualification on Form T-1
supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 6.04 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 6.05 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 6.06 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any, on) or interest on particular Securities or any coupons.
Section 6.07 Corporate Trustee Required; Eligibility;
Conflicting Interest.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1). Each successor Trustee
shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
The Trustee serves as trustee under the Indenture, dated as of
February 24, 1998, between the Company and The Bank of Nova Scotia Trust
Company of New York and the Indenture, dated as of November 27, 2001, between
the Company and The Bank of Nova Scotia Trust Company of New York.
Section 6.08 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.09.
(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 6.09 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.07(a)
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, 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 (ii) subject to TIA
Section 315(e), any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, 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). If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders
and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series to the Holders of Securities of such series in the manner
provided for in Section 1.06. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 6.09 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture to resignation or removal of the
retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates. Whenever there is a
successor Trustee with respect to one or more (but less than all) series
of securities issued pursuant to this Indenture, the terms "Indenture"
and "Securities" shall have the meanings specified in the provisos to
the respective definitions of those terms in Section 1.01 which
contemplate such situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers
and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
Section 6.10 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.11 Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 1.06. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to
the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 1.06. 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 to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
The Bank of Nova Scotia Trust Company
of New York, as Trustee
By ________________________________
as Authenticating Agent
By ________________________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that none of the Company or
the Trustee or any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
Section 7.02 Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit to the Holders of Securities, in the
manner and to the extent provided in TIA Section 313(c), a brief report dated
as of such May 15 if required by TIA Section 313(a).
Section 7.03 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
such Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE VIII
MERGER, CONSOLIDATION AND SALE OF ASSETS
Section 8.01 Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not (1) consolidate with or merge into any
other Person or convey, transfer, sell or lease its properties and assets
substantially as an entirety to any Person, (2) permit any person to
consolidate with or merge into the Company or (3) permit any person to convey,
transfer, sell or lease that person's properties or assets substantially as an
entirety to the Company, unless:
(1) in the case of (1) or (2) above, either (1) the Company is
the surviving entity or (2) if the Company no longer exists, the Person
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance, transfer, lease or sale of the
properties and assets of the Company (A) shall be a corporation, limited
liability company, partnership or trust organized and validly existing
under the laws of the United States of America, any State of the United
States or the District of Columbia and (B) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the payment of principal of
and interest on the Securities and all of the obligations of the Company
under the Securities and this Indenture;
(2) in the case of (1), (2) or (3) above, immediately after
giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and
(3) in the case of (1) or (2) above, the Company 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, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been satisfied, and in the case of (3)
above the Company shall be deemed to have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to such effect unless
the Company otherwise notifies the Trustee on or prior to the date of
such conveyance, transfer, sale or lease,
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
Section 8.02 Successor Person Substituted.
The successor Person formed by such consolidation or into which
the Company is merged or the successor person 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 Company shall be discharged
from all obligations and covenants under this Indenture and the Securities.
Subject to Article IX, the Company, the Trustee and the successor person shall
enter into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and release of the
Company.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities and any related coupons
(and if such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are being included solely for
the benefit of such series) or to surrender any right or power herein
conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form; provided that any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.09(b); or
(8) to close this Indenture with respect to the authentication
and delivery of additional series of Securities, to cure any ambiguity,
to correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture; provided
that such action shall not adversely affect the interests of the Holders
of Securities of any series and any related coupons in any material
respect;
(9) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Sections 4.01,
14.02 and 14.03; provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series and any
related coupons or any other series of Securities in any material
respect; or
(10) to effect or maintain the qualification of the Indenture
under the Trust Indenture Act.
Section 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture which affect such series of Securities or of modifying in
any manner the rights of the Holders of Securities under this Indenture;
provided, however, that no such 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 interest on, any Security or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts contemplated by Section 10.05 (except as contemplated
by Section 8.01(1) and permitted by Section 9.01(1)), 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 5.02 or the amount thereof provable
in bankruptcy pursuant to Section 5.04, or adversely affect any right of
repayment at the option of any Holder of any Security, or change any
Place of Payment where, or the Currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at
the option of the Holder, on or after the Redemption Date or Repayment
Date, as the case may be), or adversely affect any right to convert or
manage any Security as may be provided pursuant to Section 3.01 herein,
or
(2) reduce the percent in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, 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 15.04 for quorum or voting.
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. Any such supplemental indenture adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of such
series, shall not affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 9.07 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 9.02, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 1.06, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the Holders
of each series of Securities and any related coupons that it will duly and
punctually pay the principal of (and premium, if any, on) and interest on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 3.01 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
Section 10.02 Maintenance of Office or Agency.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that
series that are convertible may be surrendered for conversion, if applicable,
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 (A) in The City of New York, an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange, where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment; provided,
however, that, if the Securities of that series are listed on any 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 any required city located outside the United States so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company 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 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 any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that, if the Securities of a series are payable in Dollars,
payment of principal of (and premium, if any, on) and interest on any Bearer
Security shall be made at the office of the Company's Paying Agent in The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, 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 of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by Section
3.01 with respect to a series of Securities, the Company hereby designates as
a Place of Payment for each series of Securities the office or agency of the
Trustee in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee, as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, if and so long as the Securities of any series (i)
are denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent.
Section 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons, it will, on
or before each due date of the principal of (and premium, if any, on) or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) sufficient
to pay the principal (and premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (and premium, if any, on) or interest on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any, on) and interest on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal of (or premium, if any, on) or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of (and premium, if any, on) or
interest on any Security of any series, or any coupon appertaining thereto,
and remaining unclaimed for two years after such principal (and premium, if
any) or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security or coupon shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper, 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, any unclaimed balance of
such money then remaining will be repaid to the Company.
Section 10.04 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, 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 conditions and covenants
under this Indenture. For purposes of this Section 10.04, such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
Section 10.05 Additional Amounts.
If any Securities of a series provide for the payment of
additional amounts to any Holder who is not a United States person in respect
of any tax, assessment or governmental charge ("Additional Amounts"), the
Company will pay to the Holder of any Security of such series or any coupon
appertaining thereto such Additional Amounts as may be specified as
contemplated by Section 3.01. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal (or premium, if any, on) or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 3.01 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant
to such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise specified as contemplated by Section 3.01,
if the Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least 10 days prior to each date of payment
of principal (and premium, if any) or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of (and premium, if any, on) or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country
the amount, if any, required to be withheld on such payments to such Holders
of Securities of that series or related coupons and the Company will pay to
the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled to (i) assume that no such
withholding or deduction is required with respect to any payment of principal
(and premium, if any) or interest with respect to any Securities of a series
or related coupons until it shall have received a certificate advising
otherwise and (ii) to make all payments of principal (and premium, if any) and
interest with respect to the Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
Section 10.06 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 10.07 Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of
the Company and any Subsidiary; provided, however, that the Company shall not
be required to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries as a whole and provided
further that the foregoing does not prohibit any mergers or consolidations
between Subsidiaries or between the Company and one or more Subsidiaries so
long as any such merger or consolidation complies with Article Eight.
Section 10.08 Waiver of Certain Covenants.
The Company may, with respect to any series of Securities, omit
in any particular instance to comply with any term, provision or condition
which affects such series set forth in Sections 10.06 to 10.07, inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount of all Outstanding Securities of any series, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 3.01
for Securities of any series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 11.03. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, unless the procedures of the Common Depositary provide otherwise,
the particular Securities to be redeemed shall be selected at least 35 days
but not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for
redemption, by lot, on a pro rata basis or by another method as the Trustee
considers fair and appropriate (so long as such method is not prohibited by
the rules of any stock exchange on which the Securities are then listed) and
which may provide for the selection for redemption of portions of the
principal of Securities of such series; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than the minimum authorized denomination for
Securities of such series established pursuant to Section 3.01.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
Section 11.04 Notice of Redemption.
Except as otherwise specified as contemplated by Section 3.01,
notice of redemption shall be given in the manner provided for in Section 1.06
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price (together
with accrued interest, if any, to the Redemption Date payable as
provided in Section 11.06) will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from
the Redemption Price unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished, and
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on such Redemption Date pursuant to Section 3.05
or otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the Securities of
such series and except, if applicable, as provided in Sections 3.11(b),
3.11(d) and 3.11(e)) sufficient to pay the Redemption Price of, and accrued
interest on, all the Securities which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 3.01 for the Securities of such series and except, if applicable,
as provided in Sections 3.11(b), 3.11(d) and 3.11(e)) (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall, if the same were interest-bearing,
cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Security for redemption in
accordance with said notice, together with all coupons, if any, appertaining
thereto maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 10.02) and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and
surrender of coupons for such interest, and provided further that installments
of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 10.02) and, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set
forth in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of
any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article.
Retirements of Securities of any series pursuant to any sinking
fund shall be made in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 12.02. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 12.02 Satisfaction of Sinking Fund Payments with
Securities.
Subject to Section 12.03, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series
in cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and/or (2) receive credit for the principal amount of
Securities of such series which have been previously delivered to the Trustee
by the Company or for Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of all
or any part of any mandatory sinking fund payment with respect to the
Securities of the same series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided,
however, that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and
except, if applicable, as provided in Sections 3.11(b), 3.11(d) and 3.11(e))
and the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 12.02 (which
Securities will, if not previously delivered, accompany such certificate) and
whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 12.02 and without the right to make
any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.03 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 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.06 and 11.07.
Prior to any sinking fund payment date, the Company shall pay to
the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) in cash a sum
equal to any interest that will accrue to the date fixed for redemption of
Securities or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 12.03.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid
into such sinking fund on the next succeeding sinking fund payment date,
together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000, the
Trustee, unless requested by the Company, shall not give the next succeeding
notice of the redemption of Securities of such series through the operation of
the sinking fund. Any such unused balance of moneys deposited in such sinking
fund shall be added to the sinking fund payment for such series to be made in
cash on the next succeeding sinking fund payment date or, at the request of
the Company, shall be applied at any time or from time to time to the purchase
of Securities of such series, by public or private purchase, in the open
market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any
Paying Agent will be reimbursed by the Company) not in excess of the principal
amount thereof.
ARTICLE XIII
REPAYMENT AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 3.01 for Securities of any series) in accordance with this Article.
Section 13.02 Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such Securities. The
Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the
Securities of such series and except, if applicable, as provided in Sections
3.11(b), 3.11(d) and 3.11(e)) sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
Section 13.03 Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or
at such other place or places of which the Company shall from time to time
notify the Holders of such Securities) not earlier than 45 days nor later than
30 days prior to the Repayment Date. If less than the entire principal amount
of such Security is to be repaid in accordance with the terms of such
Security, the principal amount of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the denomination
or denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is not
to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid
in part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of Securities
of the series of which such Security to be repaid is a part. Except as
otherwise may be provided by the terms of any Security providing for repayment
at the option of the Holder thereof, exercise of the repayment option by the
Holder shall be irrevocable unless waived by the Company.
Section 13.04 When Securities Presented for Repayment Become Due
and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon surrender
of any such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing after the
Repayment Date, the principal amount of such Security so to be repaid shall be
paid by the Company, together with accrued interest, if any, to the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or prior to
the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 10.02) and,
unless otherwise specified pursuant to Section 3.01, only upon presentation
and surrender of such coupons, and provided further that, in the case of
Registered Securities, installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.07.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 13.02 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 10.02) and, unless otherwise specified as contemplated by Section
3.01, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
Section 13.05 Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid
in part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Company's Option to Effect Defeasance or Covenant
Defeasance.
Except as otherwise specified as contemplated by Section 3.01
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 14.02, or
covenant defeasance of or within a series under Section 14.03 in accordance
with the terms of such Securities and in accordance with this Article.
Section 14.02 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 14.04 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Outstanding
Securities and any related coupons, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 14.05 and the other Sections of
this Indenture referred to in (A) and (B) below, and to have satisfied all its
other obligations under such Securities and any related coupons and this
Indenture insofar as such Securities and any related coupons are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any related coupons (i) to receive,
solely from the trust fund described in Section 14.04 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any, on) and interest on such Securities and any related coupons when such
payments are due, and (ii) to receive shares of common stock or other
Securities from the Company upon the conversion of any convertible securities
issued hereunder, (B) the Company's obligations with respect to such
Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03 and with respect
to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 10.05, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section 14.02 notwithstanding the prior exercise of its option
under Section 14.03 with respect to such Securities and any related coupons.
Section 14.03 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 10.06 through 10.08,
and, if specified pursuant to Section 3.01, its obligations under any other
covenant, with respect to such Outstanding Securities and any related coupons
on and after the date the conditions set forth in Section 14.04 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any related
coupons shall thereafter be deemed not to be "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.01(4) or Section 5.01(8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any related coupons shall be unaffected thereby.
Section 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 14.02 or Section 14.03 to any Outstanding Securities of or within a
series and any related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.07 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Securities and any related coupons, (A) money in an amount (in such
Currency in which such Securities and any related coupons are then
specified as payable at Stated Maturity), or (B) Government Obligations
applicable to such Securities (determined on the basis of the Currency
in which such Securities are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of principal
(including any premium) and interest, if any, under such Securities and
any related coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any, on) and interest
on such Outstanding Securities and any related coupons on the Stated
Maturity (or Redemption Date, if applicable) of such principal (and
premium, if any) or installment or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such
Outstanding Securities and any related coupons on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any related coupons; provided that
the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such Government Obligations to said payments with
respect to such Securities and any related coupons. Before such a
deposit, the Company may give to the Trustee, in accordance with Section
11.02 hereof, a notice of its election to redeem all or any portion of
such Outstanding Securities at a future date in accordance with the
terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if
given, shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs (5) and (6) of
Section 5.01 are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a
party or by which it is bound.
(4) In the case of an election under Section 14.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of execution of
this Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Outstanding Securities
and any related coupons will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred.
(5) In the case of an election under Section 14.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any related coupons
will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not
occurred.
(6) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 3.01.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
14.02 or the covenant defeasance under Section 14.03 (as the case may
be) have been complied with.
Section 14.05 Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.03, all money and Government Obligations (or other property as may be
provided pursuant to Section 3.01) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee--collectively for purposes of
this Section 14.05, the "Trustee") pursuant to Section 14.04 in respect of
such Outstanding Securities and any related coupons shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any related coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
related coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant
to Section 3.01, if, after a deposit referred to in Section 14.04(1) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 3.11(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 14.04(1) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 3.11(d)
or 3.11(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 14.04(1) has been made, the indebtedness represented by
such Security and any related coupons shall be deemed to have been, and will
be, fully discharged and satisfied through the payment of the principal of
(premium, if any, on), and interest, if any, on such Security as they become
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on the
applicable Market Exchange Rate for such Currency in effect on the third
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 14.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any related
coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 14.04
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
Section 14.06 Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 14.05 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and such Securities and any related coupons shall be revived and
reinstated as though no deposit had occurred pursuant to Section 14.02 or
14.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 14.05; provided,
however, that if the Company makes any payment of principal of (or premium, if
any, on) or interest on any such Security or any related coupon following the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities and any related coupons to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 15.02 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 15.01, to
be held at such time and at such place in The City of New York or 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 for in
Section 1.06, 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, 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 15.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and
the place in The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided
in paragraph (a) of this Section.
Section 15.03 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Securities
of such series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of Securities of
any series shall be the Person entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 15.04 Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that, if any
action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 15.02(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of not less than a majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited by the proviso to
Section 9.02, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 15.04,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
Section 15.05 Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof
of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 1.04 and the
appointment of any proxy shall be proved in the manner specified in
Section 1.04 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.04 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 1.04 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
15.02(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
Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in Section
1.01); 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 15.02 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 15.06 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the Secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section
15.02 and, if applicable, Section 15.04. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CENDANT CORPORATION
By: /s/ Eric J. Bock
________________________________________
Name: Eric J. Bock
Title: Executive Vice President, Law and
Corporate Secretary
THE BANK OF NOVA SCOTIA TRUST COMPANY OF
NEW YORK,
Trustee
By: /s/ Warren A. Goshine
________________________________________
Name: Warren A. Goshine
Title: Secretary
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States persons(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise [Name of Issuer] or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such interest
in the above- captioned Securities in respect of which we are not able to
certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the Exchange Date
or (ii) the relevant Interest Payment Date occurring prior to the Exchange
Date, as applicable]
[Name of Person Making
Certification]
______________________________________
(Authorized Signatory)
Name:
Title:
Exhibit 4.2
HIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
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 INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP No. 151313AQ6
ISIN No. US151313AQ60
Certificate No. $
CENDANT CORPORATION
6.250% SENIOR NOTES DUE 2008
CENDANT CORPORATION, a Delaware corporation (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 its
registered assigns, the principal sum of DOLLARS
($ ) on January 15, 2008, and to pay interest on said principal sum
from January 13, 2003 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, semiannually on January 15 and July 15 of each year, commencing on
July 15, 2003 at the annual rate of 6.250% (the "Interest Rate") until the
principal hereof is paid or duly made available for payment, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the rate of 6.250% until such principal, premium or
installment of interest, as the case may be, is paid or duly made available for
payment, compounded semiannually.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. In
the event that any date on which interest is payable on this Note is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Note (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date, whether or not such day is a Business Day, for such
interest installment, which shall be the January 1 or July 1, as the case may
be, next preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Notes not more than 15 days and not less
than 10 days prior to such special record date, or may be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange all as more fully provided in the Indenture.
The principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts ("U.S.
Currency"); provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register or by wire transfer to an account
appropriately designated by the Holder entitled thereto.
The provisions of this Note are continued on the attached "Terms of
Notes" and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated: January 13, 2003
CENDANT CORPORATION
By: _______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in
the within-mentioned Indenture.
Dated: January 13, 2003
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
as Trustee
By: _______________________________
Name:
Title:
TERMS OF NOTES
6.250% SENIOR NOTE DUE 2008
1. Indenture
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of January 13, 2003 (the "Indenture"), duly executed
and delivered between the Company and The Bank of Nova Scotia Trust Company of
New York, as Trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the
Indenture, the Securities are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture.
2. Additional Securities
The Company may, without the consent of any of the Holders of these
Notes, issue additional Securities having the same tenor as these Notes so that
the additional Securities and these Notes form a single series.
3. Redemption at the Option of the Company
The Notes are redeemable, at the option of the Company, in whole at any
time or in part from time to time (the "Redemption Date"), on at least 30 days
but not more than 60 days prior notice mailed to the registered address of each
Holder of Notes, at a redemption price (the "Redemption Price") equal to the
greater of (i) the principal amount of the Notes to be redeemed or (ii) the sum
of the present values of the Remaining Scheduled Payments discounted, on a
semiannual basis (assuming a 360-day year consisting of twelve 30 day months),
at the Treasury Rate plus 45 basis points, plus, in the case of each of clauses
(i) and (ii) above, accrued interest to the date of redemption.
For purposes of the preceding paragraph, the following definitions
shall apply:
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to
maturity (computed as of the second Business Day immediately preceding
such Redemption Date) 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 fixed rate United States
Treasury security selected by an Independent Investment Banker as
having a maturity most comparable to the remaining term of the Notes
(and which are not callable prior to maturity) to be redeemed that
would be utilized, at the time of selection and in accordance with
customary financial practices, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes.
"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 bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest or lowest of such Reference Treasury
Dealer Quotations for such Redemption Date, or (B) if the Company
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 City time on the third
Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means (1) each of J.P. Morgan
Securities Inc. and Salomon Smith Barney Inc. and, in each case, their
respective successors; provided, however, that if either of them ceases
(either directly or through an affiliate) to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company may substitute therefor another nationally
recognized investment banking firm that is a Primary Treasury Dealer
and (2) any other U.S. Government securities dealers selected by the
Company.
"Remaining Scheduled Payments" means, with respect to each
note to be redeemed, the remaining scheduled payments of the principal
thereof and interest thereon, calculated at the Interest Rate, that
would be due after the related Redemption Date but for such redemption;
provided, however, that, if such Redemption Date is not an interest
payment date with respect to such Note, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the
amount of interest accrued thereon to such Redemption Date.
On and after the Redemption Date, interest shall cease to accrue on the
Notes or any portion thereof called for redemption unless the Company shall fail
to make any redemption payment. On or before the Redemption Date, the Company
shall deposit with a Paying Agent (or the Trustee) money in U.S. Currency
sufficient to pay the Redemption Price of and accrued interest on the Notes to
be redeemed on such Redemption Date. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee in
accordance with Article Eleven of the Indenture.
4. Sinking Fund
The Notes are not entitled to the benefit of any sinking fund.
5. Events of Default
In case an Event of Default shall have occurred and be continuing, the
principal of all of the Notes may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
6. Amendment; Waiver
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purposes of, among other things, adding any provisions to or changing or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying the rights of the Holders of the Notes; provided,
however, that, among other things, no such supplemental indenture shall (i)
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon (subject to the Company's right to defer such
payments in the manner set forth therein), or reduce any premium payable upon
the redemption thereof, without the consent of the Holder of each Note so
affected or (ii) reduce the aforesaid percentage of Notes, the Holders of which
are required to consent to any such supplemental indenture, without the consent
of the Holders of each Note then outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Securities of any series at the time outstanding
affected thereby, on behalf of all of the Holders of the Notes of such series,
to waive a Default or Event of Default with respect to such series, and its
consequences, except a Default or Event of Default in the payment of the
principal of or premium, if any, or interest on any of the Securities of such
series. Any such consent or waiver by the registered Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and of any Note
issued in exchange for or in place hereof (whether by registration or transfer
or otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
7. Persons Treated as Holders
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the Corporate Trust Office of the Trustee in the City of New York
and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any Paying Agent and the Security Registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any Paying Agent nor any Security Registrar shall be
affected by any notice to the contrary.
8. No Recourse Against Others
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
9. Denominations; Transfer; Exchange
The Notes may be issued in whole or in part in the form of one or more
fully registered Notes without coupons in denominations of $1,000 and any
integral multiple thereof (each a "Global Note") which initially shall be
deposited with, or on behalf of, The Depository Trust Company (the "Depositary")
and registered in the name of the Depositary's nominee in either temporary or
permanent form. As provided in the Indenture and subject to certain limitations
therein set forth, Notes of this series so issued are exchangeable for a like
aggregate amount of Notes of this series of a different authorized denomination,
as requested by the Holder surrendering the same.
Unless and until it is exchanged for the Notes in registered form, a
Global Note may be transferred, in whole but not in part, only to another
nominee of the Depositary, or to a successor Depositary selected or approved by
the Company or to a nominee of such successor Depositary.
If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as a Depositary or if at any time the Depositary for such
series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, and
a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, the Company will execute, and, subject to Article III of the
Indenture, the Trustee, upon written notice from the Company, will authenticate
and deliver the Notes in certificated registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note. In
addition, the Company may at any time determine that the Notes shall no longer
be represented by Global Note. In such event the Company will execute, and
subject to Section 3.03 of the Indenture, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Notes in certificated registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
Upon the exchange of the Global Note for such Notes in certificated registered
form without coupons, in authorized denominations, the Global Note shall be
cancelled by the Trustee. Such Notes in certificated registered form issued in
exchange for the Global Note shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Notes to the Depositary for delivery to the persons
in whose names such Notes are so registered.
10. Defeasance
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the Notes (subject to certain
exceptions) or (ii) the Company may be released from its obligations under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or Government Obligations sufficient
to pay and discharge the entire indebtedness on all Notes, and satisfies certain
other conditions, all as more fully provided in the Indenture.
11. Authentication
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
12. Governing Law
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
13. Defined Terms
All terms used in this Note but not defined herein shall have the
meanings assigned to them in the Indenture.
14. Miscellaneous
The provisions of Section 3.07(b) of the Indenture shall not be
applicable to this series of Securities.
No reference herein to the Indenture and no provision of this Note 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 Note at the time and place and at the rate and in the money
herein prescribed.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT- __________Custodian_____
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to Minors Act
JT TEN - as joint tenants with
right of survivorship ______________________________________
and not as tenants in (State)
common
Additional abbreviations may also be used
though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: ________________________
Signature: _______________________________
Signature Guarantee: ____________________
(Sign exactly as your name appears on the other side of this Note)
Exhibit 4.3
THIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
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 INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP No. 151313AP8
ISIN No. US151313AP87
Certificate No. $
CENDANT CORPORATION
7.375% SENIOR NOTES DUE 2013
CENDANT CORPORATION, a Delaware corporation (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 its registered
assigns, the principal sum of DOLLARS ($ ) on
January 15, 2013, and to pay interest on said principal sum from January 13,
2003 or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
semiannually on January 15 and July 15 of each year, commencing on July 15, 2003
at the annual rate of 7.375% (the "Interest Rate") until the principal hereof is
paid or duly made available for payment, and on any overdue principal and
premium, if any, and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the rate of 7.375% until such principal, premium or installment of
interest, as the case may be, is paid or duly made available for payment,
compounded semiannually.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. In
the event that any date on which interest is payable on this Note is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Note (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date, whether or not such day is a Business Day, for such
interest installment, which shall be the January 1 or July 1, as the case may
be, next preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Notes not more than 15 days and not less
than 10 days prior to such special record date, or may be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange all as more fully provided in the Indenture.
The principal of (and premium, if any) and the interest on this Note
shall be payable at the office or agency of the Trustee maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts ("U.S.
Currency"); provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register or by wire transfer to an account
appropriately designated by the Holder entitled thereto.
The provisions of this Note are continued on the attached "Terms of
Notes" and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: January 13, 2003
CENDANT CORPORATION
By: _______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the
within-mentioned Indenture.
Dated: January 13, 2003
THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK,
as Trustee
By: _______________________________
Name:
Title:
TERMS OF NOTES
7.375% SENIOR NOTE DUE 2013
1. Indenture
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of January 13, 2003 (the "Indenture"), duly executed
and delivered between the Company and The Bank of Nova Scotia Trust Company of
New York, as Trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. By the terms of the
Indenture, the Securities are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture.
2. Additional Securities
The Company may, without the consent of any of the Holders of these
Notes, issue additional Securities having the same tenor as these Notes so that
the additional Securities and these Notes form a single series.
3. Redemption at the Option of the Company
The Notes are redeemable, at the option of the Company, in whole at any
time or in part from time to time (the "Redemption Date"), on at least 30 days
but not more than 60 days prior notice mailed to the registered address of each
Holder of Notes, at a redemption price (the "Redemption Price") equal to the
greater of (i) the principal amount of the Notes to be redeemed or (ii) the sum
of the present values of the Remaining Scheduled Payments discounted, on a
semiannual basis (assuming a 360-day year consisting of twelve 30 day months),
at the Treasury Rate plus 50 basis points, plus, in the case of each of clauses
(i) and (ii) above, accrued interest to the date of redemption.
For purposes of the preceding paragraph, the following definitions
shall apply:
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to
maturity (computed as of the second Business Day immediately preceding
such Redemption Date) 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 fixed rate United States
Treasury security selected by an Independent Investment Banker as
having a maturity most comparable to the remaining term of the Notes
(and which are not callable prior to maturity) to be redeemed that
would be utilized, at the time of selection and in accordance with
customary financial practices, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes.
"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 bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest or lowest of such Reference Treasury
Dealer Quotations for such Redemption Date, or (B) if the Company
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 City time on the third
Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means (1) each of J.P. Morgan
Securities Inc. and Salomon Smith Barney Inc. and, in each case, their
respective successors; provided, however, that if either of them ceases
(either directly or through an affiliate) to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company may substitute therefor another nationally
recognized investment banking firm that is a Primary Treasury Dealer
and (2) any other U.S. Government securities dealers selected by the
Company.
"Remaining Scheduled Payments" means, with respect to each
note to be redeemed, the remaining scheduled payments of the principal
thereof and interest thereon, calculated at the Interest Rate, that
would be due after the related Redemption Date but for such redemption;
provided, however, that, if such Redemption Date is not an interest
payment date with respect to such Note, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the
amount of interest accrued thereon to such Redemption Date.
On and after the Redemption Date, interest shall cease to accrue on the
Notes or any portion thereof called for redemption unless the Company shall fail
to make any redemption payment. On or before the Redemption Date, the Company
shall deposit with a Paying Agent (or the Trustee) money in U.S. Currency
sufficient to pay the Redemption Price of and accrued interest on the Notes to
be redeemed on such Redemption Date. If less than all of the Notes are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee in
accordance with Article Eleven of the Indenture.
4. Sinking Fund
The Notes are not entitled to the benefit of any sinking fund.
5. Events of Default
In case an Event of Default shall have occurred and be continuing, the
principal of all of the Notes may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
6. Amendment; Waiver
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purposes of, among other things, adding any provisions to or changing or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying the rights of the Holders of the Notes; provided,
however, that, among other things, no such supplemental indenture shall (i)
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon (subject to the Company's right to defer such
payments in the manner set forth therein), or reduce any premium payable upon
the redemption thereof, without the consent of the Holder of each Note so
affected or (ii) reduce the aforesaid percentage of Notes, the Holders of which
are required to consent to any such supplemental indenture, without the consent
of the Holders of each Note then outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Securities of any series at the time outstanding
affected thereby, on behalf of all of the Holders of the Notes of such series,
to waive a Default or Event of Default with respect to such series, and its
consequences, except a Default or Event of Default in the payment of the
principal of or premium, if any, or interest on any of the Securities of such
series. Any such consent or waiver by the registered Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and of any Note
issued in exchange for or in place hereof (whether by registration or transfer
or otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
7. Persons Treated as Holders
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the Corporate Trust Office of the Trustee in the City of New York
and State of New York accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any Paying Agent and the Security Registrar may deem and
treat the registered holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any Paying Agent nor any Security Registrar shall be
affected by any notice to the contrary.
8. No Recourse Against Others
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
9. Denominations; Transfer; Exchange
The Notes may be issued in whole or in part in the form of one or more
fully registered Notes without coupons in denominations of $1,000 and any
integral multiple thereof (each a "Global Note") which initially shall be
deposited with, or on behalf of, The Depository Trust Company (the "Depositary")
and registered in the name of the Depositary's nominee in either temporary or
permanent form. As provided in the Indenture and subject to certain limitations
therein set forth, Notes of this series so issued are exchangeable for a like
aggregate amount of Notes of this series of a different authorized denomination,
as requested by the Holder surrendering the same.
Unless and until it is exchanged for the Notes in registered form, a
Global Note may be transferred, in whole but not in part, only to another
nominee of the Depositary, or to a successor Depositary selected or approved by
the Company or to a nominee of such successor Depositary.
If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as a Depositary or if at any time the Depositary for such
series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, and
a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, the Company will execute, and, subject to Article III of the
Indenture, the Trustee, upon written notice from the Company, will authenticate
and deliver the Notes in certificated registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note. In
addition, the Company may at any time determine that the Notes shall no longer
be represented by Global Note. In such event the Company will execute, and
subject to Section 3.03 of the Indenture, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver the Notes in certificated registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
Upon the exchange of the Global Note for such Notes in certificated registered
form without coupons, in authorized denominations, the Global Note shall be
cancelled by the Trustee. Such Notes in certificated registered form issued in
exchange for the Global Note shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Notes to the Depositary for delivery to the persons
in whose names such Notes are so registered.
10. Defeasance
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the Notes (subject to certain
exceptions) or (ii) the Company may be released from its obligations under
specified covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or Government Obligations sufficient
to pay and discharge the entire indebtedness on all Notes, and satisfies certain
other conditions, all as more fully provided in the Indenture.
11. Authentication
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
12. Governing Law
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
13. Defined Terms
All terms used in this Note but not defined herein shall have the
meanings assigned to them in the Indenture.
14. Miscellaneous
The provisions of Section 3.07(b) of the Indenture shall not be
applicable to this series of Securities.
No reference herein to the Indenture and no provision of this Note 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 Note at the time and place and at the rate and in the money
herein prescribed.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT- __________Custodian________
TEN ENT - as tenants by the (Cust) (Minor)
entireties under Uniform Gifts to Minors Act
JT TEN - as joint tenants with
right of survivorship ______________________________________
and not as tenants in (State)
common
Additional abbreviations may also be used
though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Note to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date: ________________________
Signature: _______________________________
Signature Guarantee: _____________________
(Sign exactly as your name appears on the other side of this Note)
Exhibit 5.1
Cendant Corporation
9 West 57th Street
New York, New York 10019
January 13, 2003
Cendant Corporation
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
I am the Executive Vice President, Law and Corporate Secretary of
Cendant Corporation, a Delaware corporation (the "Company"), and have acted as
counsel in connection with its preparation and filing with the Securities and Ex
change Commission (the "Commission") pursuant to Rule 424(b) of the Securities
Act of 1933, as amended (the "Securities Act"), of a prospectus supplement,
dated January 8, 2003 (the "Prospectus Supplement"), to the prospectus, dated
August 16, 2001 (the "Prospectus"), included as part of the Registration
Statement on Form S-3 of the Company (File Nos. 333-65858) (the "Registration
Statement"), relating to the offering by the Company of $800,000,000 aggregate
principal amount of the Com pany's 6.250% Senior Notes due 2008 and
$1,200,000,000 aggregate principal amount of the Company's 7.375% Senior Notes
due 2013 (collectively, the "Notes"). The Company issued the Notes pursuant to
that certain underwriting agreement, dated as of January 8, 2003, among the
Company and J.P. Morgan Securities Inc., Salomon Smith Barney Inc., Banc of
America Securities LLC, Banc One Capital Markets, Inc., Barclays Capital Inc.,
Credit Lyonnais Securities (USA) Inc., The Royal Bank of Scotland plc, Scotia
Capital (USA) Inc. and Wachovia Securities, Inc., as the underwriters (the
"Underwriting Agreement").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of (i) the Registration
Statement, (ii) the Prospectus, (iii) the Prospectus Supplement, (iv) the
Underwriting Agree ment, and (v) the Indenture, dated January 13, 2003, between
the Company and the Bank of Nova Scotia Trust Company of New York, as trustee
Cendant Corporation
January 13, 2003
(the "Trustee"). I have also examined originals or copies, certified or
otherwise identified to my satisfaction, of such records of the Company and
such agreements, certificates of public officials, certificates of officers or
other representatives of the Company and others, and such other documents,
certificates and records as I have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In my examination, I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submit ted to me as originals, the conformity to original documents of
all documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making my examination
of executed documents, I have assumed that the parties thereto, other than the
Company, had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and the execution and delivery of such
documents by the parties to such documents, and the validity and binding effect
thereof. As to any facts material to the opinions expressed herein which I did
not independently establish or verify, I have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
I am admitted to the bars in the States of New York and New
Jersey and do not express any opinion as to the laws of any other jurisdiction.
Based upon and subject to the limitations, qualifications,
exceptions and assumptions set forth above, I am of the opinion that the Notes
have been duly authorized and are valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except to the extent enforcement thereof might be
limited by (i) bank ruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting creditor's rights generally, and (ii)
general principles of equity, regardless of whether enforceability is considered
in a proceeding at law or equity.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. I also consent to the
reference to the use of my name under the caption "Legal Matters" in the
Registration Statement. In giving this consent, I do not thereby admit that I am
included in the category of persons
Cendant Corporation
January 13, 2003
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Eric J. Bock
Eric J. Bock
Executive Vice President, Law and
Corporate Secretary
Exhibit 99.1
CENDANT ISSUES $2 BILLION IN SENIOR UNSECURED NOTES
Proceeds to be Used to Repay Bank Debt and 2003 Maturing Debt
New York, NY. 01-08-2003 -- Cendant Corporation (NYSE: CD) announced today
that it has sold in a public offering $2 billion in senior unsecured notes, of
which $800 million are to be issued as five year notes due January 2008 and
$1.2 billion as ten year notes due January 2013. The proceeds will be used to
repay bank debt of $600 million, resulting primarily from the Budget
acquisition, and principally to pay debt maturing in 2003, including $860
million principal amount at maturity of zero coupon convertible notes putable
in May 2003 and $970 million of term notes due November 2003 and for general
corporate purposes. As previously announced, JP Morgan and Salomon Smith
Barney are the joint book-running managers for the transaction. The completion
of this transaction is scheduled for Monday, January 13, 2003, subject to
customary closing conditions.
Cendant's Chief Financial Officer, Kevin M. Sheehan, stated: "The proceeds
from the issuance of these notes, together with the recently closed $2.9
billion 3-year revolving credit facility and the Company's anticipated $2.0
billion of free cash flow in 2003, provide Cendant with ample liquidity and
flexibility to achieve our financial goals."
This press release does not constitute an offer of any securities for sale. A
prospectus, when available, can be obtained from sales representatives of JP
Morgan and Salomon Smith Barney. Cendant Corporation is primarily a provider
of travel and residential real estate services. With approximately 90,000
employees, New York City-based Cendant provides these services to businesses
and consumers in over 100 countries.
Statements about future results made in this release constitute
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements are based on current
expectations and the current economic environment. The Company cautions that
these statements are not guarantees of future performance. Actual results may
differ materially from those expressed or implied in the forward-looking
statements. Important assumptions and other important factors that could cause
actual results to differ materially from those in the forward-looking
statements are specified in Cendant's Form 10-Q for the quarterly period ended
September 30, 2002.
Media Contact:
Elliot Bloom
212-413-1832
Investor Contacts:
Sam Levenson
212-413-1834
Henry A. Diamond
212-413-1920
Exhibit 99.2
CENDANT CORPORATION TO ISSUE $750 MILLION OF SENIOR NOTES
New York, NY 01-06-2003 -- Cendant Corporation (NYSE: CD) announced today that
it plans to issue $750 million of senior notes. Cendant has named JP Morgan
and Salomon Smith Barney as joint book-running managers for the transaction.
The net proceeds will be used to repay outstanding indebtedness under
Cendant''s existing revolving credit facility principally incurred in
connection with the Budget acquisition, and for general corporate purposes.
The proposed sale to the public is anticipated to commence on or about January
9, 2003.
This press release does not constitute an offer of any securities for sale. A
prospectus, when available, can be obtained from sales representatives of JP
Morgan and Salomon Smith Barney.
Cendant Corporation is primarily a provider of travel and residential real
estate services. With approximately 90,000 employees, New York City-based
Cendant provides these services to businesses and consumers in over 100
countries.
Statements about future results made in this release constitute
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements are based on current
expectations and the current economic environment. The Company cautions that
these statements are not guarantees of future performance.
Media Contact:
Elliot Bloom
212-413-1832
Investor Contacts:
Sam Levenson
212-413-1834
Henry A. Diamond
212-413-1920
