AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1996
REGISTRATION STATEMENT NO. 333-
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 33-50025
36-2361282
DELAWARE (I.R.S. EMPLOYER IDENTIFICATION
NUMBER)
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
|
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE
SECURITIES TO BE TO BE OFFERING PRICE OFFERING AMOUNT OF
REGISTERED REGISTERED PER UNIT(1)(2) PRICE(1)(2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------
Debt Securities........ $1,000,000,000(3) 100% $1,000,000,000 $344,830
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
PURSUANT TO THE PROVISIONS OF RULE 429 OF THE GENERAL RULES AND REGULATIONS
UNDER THE SECURITIES ACT, THE PROSPECTUS CONTAINED IN THIS REGISTRATION
STATEMENT ALSO RELATES TO THE SECURITIES REGISTERED PURSUANT TO THE
REGISTRANT'S REGISTRATION STATEMENT NO. 33-50025 ON FORM S-3 DECLARED
EFFECTIVE ON AUGUST 23, 1993. THIS REGISTRATION STATEMENT, WHICH IS A NEW
REGISTRATION STATEMENT, ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 33-50025, AND SUCH POST-EFFECTIVE AMENDMENT NO. 1
SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE EFFECTIVENESS OF THIS
REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES
ACT.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + |
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED OCTOBER 15, 1996
PROSPECTUS
MCDONALD'S CORPORATION
DEBT SECURITIES
McDonald's Corporation (the "Company") intends to issue from time to time in one or more series its debt securities ("Debt Securities") which may be either senior debt securities (the "Senior Debt Securities") or subordinated debt securities (the "Subordinated Debt Securities") with an aggregate initial public offering price or purchase price of up to $1,200,000,000, or the equivalent thereof in one or more foreign or composite currencies, including the European Currency Unit ("ECU"). Debt Securities of each series will be offered on terms to be determined at the time of sale. Debt Securities may be sold for U.S. dollars or for one or more foreign or composite currencies, and the principal of, premium, if any, and any interest on Debt Securities may be payable in U.S. dollars or in one or more foreign or composite currencies. Debt Securities of a series may be issuable as individual securities in registered form without coupons, or as one or more global securities in registered form. The specific designation and classification as Senior Debt Securities or Subordinated Debt Securities of the Company, aggregate principal (or, if principal payable is determined by reference to an index, face) amount, the currency in which the principal, premium, if any, and any interest are payable, the rate (or method of calculation) and the time and place of payment of any interest, authorized denominations, maturity, offering price, any redemption terms and any other specific terms of the Debt Securities in respect of which this Prospectus is being delivered will be set forth in an accompanying Prospectus Supplement (a "Prospectus Supplement").
The Debt Securities will be unsecured. Unless otherwise specified in a Prospectus Supplement, the Senior Debt Securities will rank equally with all other unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt Securities will be subordinated to all Senior Indebtedness of the Company (as hereinafter defined).
The Debt Securities may be sold by the Company directly, through agents designated from time to time, through dealers or one or more underwriters, or through a syndicate of underwriters managed by one or more underwriters. If underwriters or agents are involved in any offering of Debt Securities, the names of the underwriters or agents will be set forth in the applicable Prospectus Supplement. If an underwriter, agent or dealer is involved in any offering of Debt Securities, the underwriter's discount, agent's commission or dealer's purchase price will be set forth in, or may be calculated from the information set forth in, the applicable Prospectus Supplement, and the net proceeds to the Company from such offering will be the public offering price of such Debt Securities less such discount, in the case of an offering through an underwriter, or the purchase price of such Debt Securities less such commission, in the case of an offering through an agent, and less, in each case, the other expenses of the Company associated with the issuance and distribution of such Debt Securities. See "Plan of Distribution" for specific details.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COM- MISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1996.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy statements and other information filed by the Company with the Commission can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the following Regional Offices of the Commission: New York Regional Office, Seven World Trade Center, 13th Floor, New York, New York 10048 and Chicago Regional Office, 500 W. Madison Street, Suite 1400, Chicago, Illinois 60661; and copies of such material can be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such reports, proxy statements and other information can also be inspected at the offices of the New York Stock Exchange and Chicago Stock Exchange. The Company is not required to, and will not, provide an annual report or any other periodic report to any holder of its debt securities unless specifically requested by such holder.
The Company has filed with the Commission a Registration Statement on Form S-
3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the Debt Securities. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted from this Prospectus in accordance with the rules
and regulations of the Commission. For further information, reference is hereby
made to the Registration Statement.
A Company franchisee provides food services exclusively to United States government personnel stationed at the United States naval station in Guantanamo Bay, Cuba. This statement is made pursuant to the disclosure requirements of Florida law and is accurate as of the date of this Prospectus. Investors may obtain current information by contacting the Florida Department of Banking and Finance, The Capitol, Tallahassee, Florida 32399-0350, telephone number (904) 488-9805.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission (File No. 1-5231) pursuant to the Exchange Act and are incorporated herein by reference and made a part of this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995, as amended by the Company's Form 10-K/A Amendment No. 1 dated June 27, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, and June 30, 1996; and
(c) The Company's Current Reports on Form 8-K dated January 25, April 22, July 18, 1996 and October 7, 1996.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated herein by reference and made a part of this
Prospectus from the respective dates of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in the accompanying
Prospectus Supplement or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute part of this Prospectus.
The Company will furnish without charge to each person to whom this Prospectus is delivered, upon request, a copy of any or all of the documents described above, other than certain exhibits to such documents. Written or telephone requests should be directed to: McDonald's Shareholder Services, McDonald's Corporation, Kroc Drive, Oak Brook, Illinois 60521, (630) 575-7428.
References herein to "U.S. dollars", "dollars" or "$" are to the lawful currency of the United States of America.
MCDONALD'S CORPORATION
McDonald's Corporation and its subsidiaries develop, operate, franchise and service a worldwide system of restaurants which prepare, assemble, package and sell a limited menu of value-priced foods. These restaurants are operated by the Company and its subsidiaries or, under the terms of franchise arrangements, by franchisees who are independent third parties, or by affiliates operating under joint-venture agreements between the Company or its subsidiaries and local businesspeople.
McDonald's restaurants offer a substantially uniform menu consisting of hamburgers and cheeseburgers, including the Big Mac, Quarter Pounder with Cheese and Arch Deluxe sandwiches, the Filet Deluxe, Grilled Chicken Deluxe and Crispy Chicken Deluxe sandwiches, french fries, Chicken McNuggets, salads, milk shakes, sundaes and cones, pies, cookies and a limited number of soft drinks and other beverages. In addition, the restaurants sell a variety of products during limited promotional time periods. McDonald's restaurants operating in the United States are open during breakfast hours and offer a full breakfast menu including the Egg McMuffin and the Sausage McMuffin with Egg sandwiches, hotcakes and sausage; three varieties of biscuit sandwiches; Apple Bran muffins; and cereals. McDonald's restaurants in several countries around the world offer many of these same products as well as other products and limited breakfast menus. The Company tests new products on an ongoing basis.
McDonald's restaurants are located in all fifty of the United States and the District of Columbia, and in many foreign locations, principally Japan, Canada, Germany, England, Australia and France. At June 30, 1996, there were 17,420 traditional restaurants worldwide, of which 10,524 were located in the United States and 6,896 in 93 other countries. An additional 542 traditional restaurants were under construction at June 30, 1996, including 389 outside the United States.
At June 30, 1996, 66% of McDonald's traditional restaurants were operated by independent franchisees, 21% were operated by the Company and its subsidiaries and 13% were operated by affiliates (entities in which the Company and/or its subsidiaries have an equity interest of 50% or less and in which the remaining equity interest generally is owned by a local resident).
The Company's principal executive offices are located at One McDonald's Plaza, Oak Brook, Illinois 60521, telephone: (630) 575-3000.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the Company intends to use the net proceeds from the sale of the Debt Securities for general corporate purposes, which may include refinancing of debt, capital expenditures such as the acquisition and development of McDonald's restaurants and the purchase of common stock of the Company under the Company's ongoing share repurchase program. Specific allocations of the proceeds for such purposes have not been made at this time.
RATIO OF EARNINGS TO FIXED CHARGES
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------- ------------------------
1996 1995 1995 1994 1993 1992 1991
----- ----- ---- ---- ---- ---- ----
Ratio of Earnings to Fixed Charges......... 5.12 5.03 5.20 5.26 4.86 3.96 3.53
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The ratios of earnings to fixed charges shown above have been computed on a total enterprise basis. Earnings represent income before provision for income taxes and fixed charges. Fixed charges consist of interest on all indebtedness, amortization of debt issuance costs and discount or premium relating to any indebtedness, fixed charges related to redeemable preferred stock and such portion of rental charges (after reduction for related sublease income) considered to be representative of the interest component in the particular case.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of the Debt Securities to which any Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions may not apply to the Debt Securities so offered will be described in the Prospectus Supplement relating to such Debt Securities.
The Senior Debt Securities are to be issued under an Indenture (the "Senior Indenture"), to be entered into between the Company and First Union National Bank, as Trustee (the "Trustee"). The Subordinated Debt Securities are to be issued under a separate Indenture (the "Subordinated Indenture") to be entered into between the Company and the Trustee. The Senior Indenture and the Subordinated Indenture are sometimes collectively referred to as the "Indentures." Copies of the Senior Indenture and the Subordinated Indenture are filed as exhibits to the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the Senior Debt Securities, Subordinated Debt Securities and Indentures do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Indentures applicable to a particular series of Debt Securities, including the definitions therein of certain terms. Wherever particular Sections, Articles or defined terms of the Indentures are referred to, such Sections, Articles or defined terms are incorporated herein by reference, and the statements made herein are qualified in their entirety by such reference. Article and Section references used herein are references to the applicable Indenture. Except as otherwise indicated, the terms of the Senior Indenture and the Subordinated Indenture are identical. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Indentures to which they relate. As used under this caption, the term "Debt Securities" includes the debt securities being offered by this Prospectus and all other debt securities issued from time to time by the Company under the Indentures.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt Securities which may be issued thereunder and each Indenture provides that Debt Securities may be issued thereunder from time to time in one or more series. The Debt Securities will be unsecured. Unless otherwise specified in the Prospectus Supplement, the Senior Debt Securities when issued will be unsubordinated obligations of the Company and will rank equally and ratably with all other unsecured and unsubordinated indebtedness for borrowed money of the Company. Certain unsecured obligations of the Company may, however, under certain circumstances, become secured by mortgages pursuant to negative pledge covenants applicable to such obligations while the Senior Debt Securities remain unsecured. The Subordinated Debt Securities when issued will be subordinated in right of payment to the prior payment in full of all Senior Indebtedness (as defined below) of the Company, as described under "Subordination of Subordinated Debt Securities" and in the Prospectus Supplement applicable to an offering of Subordinated Debt Securities.
Reference is made to the Prospectus Supplement related to the series of Debt
Securities being offered thereby (the "Offered Debt Securities"), which sets
forth whether the Offered Debt Securities shall be Senior Debt Securities or
Subordinated Debt Securities, and further sets forth the following terms, where
applicable: (i) the title of the Offered Debt Securities; (ii) the limit, if
any, upon the aggregate principal amount of the Offered Debt Securities; (iii)
the date or dates on which the principal and premium, if any, of the Offered
Debt Securities is payable; (iv) the rate or rates or the method of
determination thereof, at which the Offered Debt Securities will bear interest,
if any; the date or dates from which such interest will accrue; the interest
payment dates on which such interest will be payable; and, the record dates for
the interest payable on such interest payment dates; (v) whether the Offered
Debt Securities are to be issued as Original Issue Discount Securities (as
defined below) and the amount of discount with which the Offered Debt
Securities will be issued; (vi) the place or places where the principal of, and
premium, if any, and any interest on the Offered Debt Securities will be
payable; (vii) the price or prices at which, the period or periods within which
and the terms and conditions upon which the Offered Debt Securities may be
redeemed in whole or in part, at the option of the Company, pursuant to any
sinking fund or otherwise; (viii) the obligation, if any, of the Company to
redeem, purchase or repay the Offered Debt Securities pursuant to any sinking
fund or analogous provisions or at the option of a Holder and the price or
prices at which and the period or periods within which and the terms and
conditions upon which the Offered Debt Securities will be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation; (ix) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Offered Debt Securities will be issuable; (x) if other than the
principal amount, the portion of the principal amount of the Offered Debt
Securities which will be payable upon declaration of acceleration of the
maturity thereof pursuant to the Indenture; (xi) any non-application of,
addition to, or change in any of the Events of Default provided for with
respect to the Offered Debt Securities and remedies with respect thereto; (xii)
if the Offered Debt Securities are non-interest bearing, the "stated
intervals"; (xiii) the currency or currencies in which payments on the Offered
Debt Securities are payable; and (xiv) any other terms of the Offered Debt
Securities not inconsistent with the provisions of the applicable Indenture.
(Section 2.02)
If the principal of (and premium, if any) or any interest on the Offered Debt Securities is payable in a foreign or composite currency, the restrictions, elections, federal income tax consequences, specific terms and other information with respect to the Offered Debt Securities and such currency will be described in the Prospectus Supplement relating thereto.
One or more series of Offered Debt Securities may be sold at a discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates ("Original Issue Discount Securities"). One or more series of Offered Debt Securities may be variable rate debt securities that may be exchangeable for fixed rate debt securities. Federal income tax consequences and other special considerations applicable to any such series will be described in the Prospectus Supplement relating thereto.
Unless otherwise provided in the applicable Prospectus Supplement, the principal of (and premium, if any) and any interest on the Offered Debt Securities will be payable at the offices of the Trustee in New York, New York and Charlotte, North Carolina; provided, however, that payment of interest on Offered Debt Securities may be made at the option of the Company by check mailed to the Holders thereof. (Sections 2.02, 4.01 and 4.02) Unless otherwise provided in the applicable Prospectus Supplement, Offered Debt Securities may be transferred or exchanged at the office or agency maintained by the Company for such purpose, subject to the limitations provided in the applicable Indenture, without the payment of any service charge, other than any tax or governmental charge payable in connection therewith. (Section 2.06)
All moneys paid by the Company to the Trustee or a paying agent for the payment of principal of (and premium, if any) or any interest on any Offered Debt Security that remains unclaimed at the end of two years after such principal, premium or interest shall have become due and payable will be repaid to the Company on demand, and the Holder of such Offered Debt Security will thereafter look only to the Company for payment thereof. (Section 12.05)
GLOBAL SECURITIES
If any Offered Debt Securities are issuable in temporary or permanent global form, the applicable Prospectus Supplement will describe the circumstances, if any, under which beneficial owners of interests in any such permanent global Debt Security may exchange such interests for definitive Offered Debt Securities of such series and of like tenor and principal amount in any authorized form and denomination. Principal of and premium and interest on a permanent global Debt Security will be payable in the manner described in the applicable Prospectus Supplement. (Section 2.01)
LIMITATION ON LIENS COVENANT IN THE SENIOR INDENTURE
The Senior Indenture contains the covenant described below which is applicable to the Company with respect to any and all series of Senior Debt Securities issued thereunder unless otherwise specified in the applicable Prospectus Supplement. Specific covenants, if any, peculiar to a particular series of Senior Debt Securities to be offered hereby will be described in the Prospectus Supplement relating thereto.
Section 4.06 of the Senior Indenture requires that the Company will not, nor
will it permit any Restricted Subsidiary (as hereinafter defined) to issue or
assume any debt for money borrowed (hereinafter in this and the following three
paragraphs referred to as "Debt") if such Debt is secured by a mortgage,
security interest, pledge, lien or other encumbrance (mortgages, security
interests, pledges, liens and other encumbrances being hereinafter called
"mortgage" or "mortgages") upon any Principal Property (as hereinafter defined)
or upon any shares of stock or indebtedness of any Restricted Subsidiary
(whether such Principal Property, shares of stock or indebtedness are now owned
or hereafter acquired) without in any such case effectively providing that the
Senior Debt Securities, and at the Company's option any other indebtedness of
the Company or any Restricted Subsidiary ranking equally with the Senior Debt
Securities, shall be secured equally and ratably with such Debt. The foregoing
restrictions shall not apply to Debt secured by (i) mortgages on property,
shares of stock or indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary, (ii) mortgages on property
existing at the time of acquisition thereof and certain purchase money
mortgages, (iii) mortgages securing Debt of a Restricted Subsidiary owing to
the Company or another Restricted Subsidiary, (iv) mortgages on property of a
corporation existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or at the time of a
sale, lease or other disposition of the properties of a corporation as an
entirety or substantially as an entirety to the Company or a Restricted
Subsidiary, (v) mortgages in favor of any country or any political subdivision
of any country, or any instrumentality thereof, to secure certain payments
pursuant to any contract or statute or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price or the cost of
construction of the property subject to such mortgages, or (vi) any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any mortgage referred to in the foregoing clauses (i) to
(v), inclusively. Notwithstanding the above, the Company and one or more
Restricted Subsidiaries may, without securing the Senior Debt Securities, issue
or assume secured Debt which would otherwise be subject to the foregoing
restrictions, provided that after giving effect thereto the aggregate of such
secured Debt then outstanding (not including secured Debt permitted under the
foregoing exceptions) at such time does not exceed 20% of the shareholders'
equity of the Company and its consolidated subsidiaries as of the end of the
preceding fiscal year. The transfer of a Principal Property to a subsidiary or
any third party shall not be restricted. (Section 4.06)
The term "Principal Property" means all real property owned by the Company or any Restricted Subsidiary which is located within the continental United States of America and, in the opinion of the Board of Directors of the Company, is of material importance to the total business conducted by the Company and its consolidated affiliates as an entity. (Section 1.01)
The term "Subsidiary" means any corporation or other Person of which the Company, or the Company and one or more Subsidiaries, or any one or more Subsidiaries, directly or indirectly owns voting securities or other similar equity interests entitling the owners thereof to elect a majority of the directors or individuals holding similar positions in other Persons, either at all times or so long as there is no default or contingency
which permits the owners of any other class or classes of securities or other interests to vote for the election of one or more directors or individuals holding similar positions in other Persons, but shall not include any corporation or other Person with respect to which the Company or any other Subsidiary has become entitled to elect a majority of the directors or individuals holding similar positions in other Persons solely due to a default or other contingency which is temporary in character and has had a continuous existence of less than one year. (Section 1.01)
The term "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. (Section 1.01)
The term "Restricted Subsidiary" means any Subsidiary (i) substantially all the property of which is located within the continental United States of America, (ii) which owns Principal Property and (iii) in which the Company's investment, direct or indirect and whether in the form of equity, debt, advances or otherwise, is in excess of U.S. $1,000,000,000 as shown on the books of the Company as of the end of the fiscal year immediately preceding the date of determination; provided, however, that "Restricted Subsidiary" shall not include any Subsidiary primarily engaged in financing activities, primarily engaged in the leasing of real property to persons other than the Company and its Subsidiaries, or which is characterized by the Company as a temporary investment. (Section 1.01)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent and in the manner set forth in the Subordinated Indenture, be subordinate in right of payment to all indebtedness for borrowed money of the Company, whether now outstanding or hereafter incurred, which is not by its terms subordinate to other indebtedness of the Company (the "Senior Indebtedness"). As of June 30, 1996, the aggregate amount of the outstanding Senior Indebtedness of the Company was approximately $4.1 billion.
In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Company or its property, and, except as otherwise provided in the Subordinated Indenture, in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, all principal, premium, if any, and interest on the Senior Indebtedness will be paid in full before any payment is made by the Company on the Subordinated Debt Securities. In the event that pursuant to the terms of the Subordinated Indenture any Subordinated Debt Security of any series is declared due and payable because of the occurrence of an Event of Default, as provided in the Subordinated Indenture, and the previous sentence is not applicable, the Holders of the Subordinated Debt Securities of such series shall be entitled to payment from the Company only after the Senior Indebtedness outstanding at the time such Subordinated Debt Security so becomes due and payable because of such Event of Default shall first have been paid in full or such payment shall have been provided for. (Section 15.01.)
The Subordinated Indenture does not limit or prohibit the incurrence of additional Senior Indebtedness, which may include indebtedness that is senior to the Subordinated Debt Securities, but subordinate to other obligations of the Company. The Senior Debt Securities constitute Senior Indebtedness under the Subordinated Indenture.
The Prospectus Supplement may further describe the provisions, if any, applicable to the subordination of the Subordinated Debt Securities of a particular series.
EVENTS OF DEFAULT
The Indentures define an Event of Default with respect to any series of Debt Securities as being any one of the following events: (a) default for 30 days in any payment of interest on such series; (b) default in any payment of principal of or premium, if any, on such series when due (and continuance of such default for a period of 10 days in the case of Subordinated Debt Securities); (c) default in the payment of any sinking fund
payment when due (and continuance of such default for a period of 10 days in
the case of Subordinated Debt Securities); (d) default for 60 days, after
appropriate notice, in performance of any other covenants in the Indentures
(other than the Section 4.06 covenant in the Senior Indenture and any other
covenant included in the Indentures solely for the benefit of a series of Debt
Securities other than that series), provided that such default shall not be an
Event of Default if it cannot with due diligence be cured within such 60-day
period due to causes beyond the control of the Company, unless the Company
shall fail to proceed promptly to cure such default and thereafter prosecute
the curing of such default with diligence and continuity; (e) certain events of
bankruptcy, insolvency or reorganization; or (f) default in the performance of
a particular covenant applicable to that series after appropriate notice and
opportunity to cure such default, if any. The Senior Indenture defines a
default for 120 days after appropriate notice in the performance of the Section
4.06 covenant as an additional Event of Default with respect to the Senior Debt
Securities. An Event of Default with respect to a particular series of Debt
Securities issued under either of the Indentures does not necessarily
constitute an Event of Default with respect to any other series of Debt
Securities issued thereunder. In case an Event of Default under clauses (a),
(b), (c) or (f) set forth above with respect to the Indentures shall occur and
be continuing with respect to any series of Debt Securities, the Trustee or the
Holders of not less than 25% in aggregate principal amount of Debt Securities
then Outstanding of such series may declare the entire principal (or, if the
Debt Securities of such series are Original Issue Discount Securities, the
portion of the principal amount specified in the terms of such series) of such
series to be due and payable. In case an Event of Default under clauses (d) or
(e) set forth above with respect to the Indentures or with respect to Section
4.06 of the Senior Indenture shall occur and be continuing, the Trustee or
Holders of not less than 25% in aggregate principal amount of all the
Outstanding Debt Securities may declare the entire principal (or, if any Debt
Securities are Original Issue Discount Securities, the portion of the principal
amount specified in the terms thereof) of Outstanding Debt Securities of all
series to be due and payable. Any Event of Default with respect to a particular
series of Debt Securities may be waived by the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of such series
(or of all the Outstanding Debt Securities, as the case may be), except in each
case a failure to pay principal of, or premium, if any, or interest on such
Debt Securities. (Section 6.01; Section 6.07)
Each Indenture requires the Company to file with the Trustee an officers' certificate annually as to compliance with all conditions and covenants under the Indenture. (Section 4.05) Subject to the provisions of the Indentures relating to the duties of the Trustee, each Indenture provides that the Trustee shall be under no obligation to exercise any of its rights or powers under the applicable Indenture at the request, order or direction of the Holders of the Debt Securities unless such Holders shall have offered to the Trustee reasonable indemnity. (Sections 6.04 and 7.01) Subject to such provisions for indemnification and certain other rights of the Trustee, each Indenture provides that the Holders of a majority (voting as one class) in principal amount of the Outstanding Debt Securities of each series affected will 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. (Section 6.07)
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may enter into supplemental indentures without the consent of the Holders of the Debt Securities to (a) evidence the assumption by a successor corporation of the obligations of the Company, (b) add covenants for the protection of the Holders of the Debt Securities, (c) add or change any of the provisions of the Indenture to permit or facilitate the issuance of Debt Securities of any series in bearer or coupon form, (d) cure any ambiguity or correct any inconsistency in such Indenture, (e) establish the form or terms of Debt Securities of any series as permitted by the terms of the Indenture and (f) evidence the acceptance of appointment by a successor trustee. (Section 10.01)
Each Indenture contains provisions permitting the Company and the Trustee thereunder, with the consent of the Holders of not less than 66 2/3% in aggregate principal amount of the Debt Securities of each series affected by such supplemental indenture, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the applicable Indenture or any
supplemental indenture or modifying in any manner the rights of the Holders of Debt Securities of each such series, provided that no such supplemental indenture shall, among other things (i) extend the fixed maturity of any Debt Security, or reduce the principal amount thereof (including in the case of a discounted Debt Security the amount payable upon acceleration of the maturity thereof), reduce the rate or extend the time of payment of interest thereon, or make the principal of, premium, if any, or interest, if any, thereon payable in any coin or currency other than that provided in the Debt Security, without the consent of the Holder of each Debt Security so affected or (ii) reduce the aforesaid percentage of such Debt Securities of any series, the consent of the Holders of which is required for any supplemental indenture, without the consent of the Holder of each such Debt Security so affected. (Section 10.02)
DISCHARGE OF INDENTURES
The Company, at its option, (a) will be discharged from any and all
obligations in respect of such Debt Securities (except in each case for certain
obligations to register the transfer or exchange of such Debt Securities,
replace stolen, lost or mutilated Debt Securities, maintain paying agencies and
hold monies for payment in trust) or (b) need not comply with certain
restrictive covenants of the Indentures (including that described under
"Limitation on Liens Covenant in the Senior Indenture") and will not be limited
by any restrictions with respect to merger, consolidation or sales of assets,
in each case if the Company deposits with the Trustee, in trust, (x) money or
(y) U.S. Government Obligations or a combination of (x) and (y) which, through
the payment of interest thereon and principal thereof in accordance with their
terms, will provide money in an amount sufficient to pay all the principal
(including any mandatory sinking fund payments) of, and interest, if any, and
premium, if any, on, such Debt Securities on the dates such payments are due in
accordance with the terms of such series. (Section 12.02) In order to avail
itself of either of the foregoing options, the Company must provide to the
Trustee an opinion of counsel or a ruling from, or published by, the Internal
Revenue Service, to the effect that Holders of the Debt Securities of such
series will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option and will be subject to
Federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised.
(Section 12.02) "U.S. Government Obligations" means generally (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof.
(Section 1.01) In addition, the Company can also obtain a discharge under the
Indentures with respect to all the Debt Securities of a series by depositing
with the Trustee, in trust, funds sufficient to pay at maturity or upon
redemption all of the Debt Securities of such series provided that all of the
Debt Securities of such series are by their terms to become due and payable
within one year or are to be called for redemption within one year. No such
opinion of counsel or ruling from the Internal Revenue Service is required with
respect to a discharge pursuant to the immediately
preceding sentence. In the event of any discharge of Debt Securities pursuant
to the terms of the Indentures described above, the Holders of such Debt
Securities will thereafter be able to look solely to such trust fund, and not
to the Company, for payments of principal, premium, if any, and interest, if
any. (Sections 12.01 and 12.02)
CONCERNING THE TRUSTEE
The Company, its subsidiaries and affiliates maintain banking relationships (including the extension of credit) in the ordinary course of business with the Trustee. The Trustee is also trustee under other indentures of the Company under which certain of the Company's senior and subordinated Debt Securities have been issued.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities in any of three ways: (i) through underwriters or dealers; (ii) directly to one or more purchasers; or (iii) through agents. The applicable Prospectus Supplement will set forth the terms of the offering of any Debt Securities, including the names of any underwriters, the purchase
price of such Debt Securities and the net proceeds to the Company from such sale, any underwriting discounts and other items constituting underwriters' compensation or agents' commission, any initial public offering price, any discounts or concessions allowed or reallowed or paid to dealers, any securities exchanges on which such Debt Securities may be listed and any restrictions on the sale and delivery of Debt Securities in bearer form.
If underwriters or dealers are used in the sale, Debt Securities will be acquired by such underwriters or dealers for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Such Debt Securities may be offered to the public either through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Unless otherwise set forth in the applicable Prospectus Supplement, the obligations of the underwriters to purchase such Debt Securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of such Debt Securities if any of such Debt Securities are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Debt Securities may also be sold directly by the Company or through agents designated by the Company from time to time. Any agent involved in the offer or sale of Debt Securities will be named, and any commissions payable by the Company to such agent will be set forth, in the applicable Prospectus Supplement. Unless otherwise indicated in the applicable Prospectus Supplement, any such agent will act on a best efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of Debt Securities may be deemed to be underwriters and any discounts or commissions received by them on the sale or resale of Debt Securities may be deemed to be underwriting discounts and commissions under the Securities Act. Agents and underwriters may be entitled under agreements entered into with the Company to indemnification by the Company against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the agents or underwriters may be required to make in respect of such liabilities. Agents and underwriters may be customers of, engage in transactions with, or perform services for, the Company or its subsidiaries or affiliates in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize agents and underwriters to solicit offers by certain institutions to purchase the Debt Securities being offered hereby from the Company at the public offering price set forth in the Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for payment and delivery on the date or dates stated in the Prospectus Supplement. Each Contract will be for an amount not less than, and unless the Company otherwise agrees the aggregate principal (or face) amount of Debt Securities sold pursuant to Contracts shall be not less nor more than, the respective amounts stated in the Prospectus Supplement. Institutions with which Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to the approval of the Company. Contracts will not be subject to any conditions except that (i) the purchase by an institution of the Debt Securities covered by its Contract shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such institution is subject, and (ii) if the Debt Securities being offered hereby are being sold to underwriters, the Company shall have sold to such underwriters the total principal (or face) amount of such Debt Securities less the principal amount thereof covered by the Contracts.
LEGAL MATTERS
The legality of the Debt Securities offered hereby will be passed upon for the Company by Gloria Santona, Vice President, Associate General Counsel and Secretary of the Company. Ms. Santona is a full-time employee of the Company and owns shares of the Company's Common Stock directly and as a participant in various employee benefit plans. Ms. Santona also holds options to purchase shares of the Company's Common Stock.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses in connection with the issuance and distribution of the Debt Securities being registered. All the amounts are estimated, except the Securities and Exchange Commission Registration fee.
Securities and Exchange Commission Registration fee............. $344,830
Fees and expenses of accountants................................ 55,000
Fees and expenses of counsel.................................... 5,000
Blue Sky fees and expenses...................................... 10,000
Fees and expenses of Trustee and agents......................... 50,000
Printing and Engraving expenses................................. 100,000
Rating Agency fees.............................................. 220,000
Miscellaneous................................................... 15,170
--------
Total......................................................... $800,000
========
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "GCL") provides for indemnification of directors and officers against any legal liability (other than liability arising from derivative suits) if the director or officer acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the corporation. In criminal actions, the director or officer must also have had no reasonable cause to believe that his or her conduct was unlawful. A corporation may indemnify a director or officer in a derivative suit if the director or officer acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the corporation unless the director or officer is found liable to the corporation (in which case a court may permit indemnity for such director or officer to the extent it deems proper).
Article V of the Company's By-Laws provides that the Company shall indemnify and hold harmless each director and officer to the fullest extent permitted under the GCL, provided that the person seeking indemnification has met the applicable standard of conduct set forth in the By-Laws. Such indemnification could cover all expenses as well as liabilities and losses incurred by directors and officers. The Board of Directors has the authority by resolution to provide for other indemnification of directors and officers as it deems appropriate.
The By-Laws further provide that the Company may maintain insurance at its expense to protect any director or officer against any expenses, liabilities or losses, whether or not the Company would have the power to indemnify such director or officer against such expenses, liabilities or losses under the GCL. Pursuant to this provision, the Company maintains insurance against any liability incurred by its directors and officers in defense of any action in which they are made parties by reason of their positions as directors and officers.
II-1
ITEM 16. LIST OF EXHIBITS.
1 Form of Underwriting Agreement.
4(a) Form of Senior Debt Securities Indenture between McDonald's Corporation
and First Union National Bank, as Trustee (including form of Senior
Debt Security).
4(b) Form of Subordinated Debt Securities Indenture between McDonald's
Corporation and First Union National Bank, as Trustee (including form
of Subordinated Debt Security).
5 Opinion and consent of Gloria Santona, Vice President, Associate General
Counsel and Secretary of the Company.
12 Statement re computation of ratios of earnings to fixed charges.*
23(a) Consent of Ernst & Young LLP, independent auditors.
23(b) Consent of Gloria Santona, Vice President, Associate General Counsel and
Secretary of the Company is included in Exhibit 5.
24 Powers of Attorney (set forth on page II-4 of this Registration
Statement).
25 Statement of Eligibility and Qualification on Form T-1 of First Union
National Bank, as Trustee.
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II-2
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) of the Securities Act of 1933 if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(d) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(e) That, insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 15 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3, AND HAS DULY CAUSED THIS REGISTRATION STATEMENT AND POST-EFFECTIVE AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE VILLAGE OF OAK BROOK, AND STATE OF ILLINOIS, ON THE 15TH DAY OF OCTOBER, 1996.
McDONALD'S CORPORATION
/s/ Jack M. Greenberg
By___________________________________
Jack M. Greenberg Vice Chairman,
Chairman--McDonald's U.S.A. and
Director
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Each person whose signature appears below constitutes and appoints Jack M. Greenberg, Michael L. Conley, Gloria Santona and Carleton D. Pearl, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys- in-fact and agents or any of them, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement and Post-Effective Amendment has been signed below by the following persons in the capacities indicated and on the 15th day of October, 1996.
SIGNATURE TITLE
--------- -----
- ------------------------------------
Hall Adams, Jr. Director
- ------------------------------------
Robert M. Beavers, Jr. Senior Vice President, Zone Manager and
Director
/s/ James R. Cantalupo
- ------------------------------------
James R. Cantalupo President and Chief Executive Officer--
McDonald's International and Director
- ------------------------------------
Gordon C. Gray Director
/s/ Jack M. Greenberg
- ------------------------------------
Jack M. Greenberg Vice Chairman, Chairman--McDonald's
U.S.A. and Director
- ------------------------------------
Enrique Hernandez, Jr. Director
/s/ Donald R. Keough
- ------------------------------------
Donald R. Keough Director
/s/ Donald G. Lubin
- ------------------------------------
Donald G. Lubin Director
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II-4
SIGNATURE TITLE
--------- -----
/s/ Andrew J. McKenna
- ------------------------------------
Andrew J. McKenna Director
/s/ Michael R. Quinlan
- ------------------------------------
Michael R. Quinlan Chairman, Chief Executive Officer and
Director
/s/ Edward H. Rensi
- ------------------------------------
Edward H. Rensi President and Chief Executive Officer--
McDonald's U.S.A. and Director
/s/ Terry L. Savage
- ------------------------------------
Terry L. Savage Director
/s/ Paul D. Schrage
- ------------------------------------
Paul D. Schrage Senior Executive Vice President, Chief
Marketing Officer and Director
/s/ Ballard F. Smith
- ------------------------------------
Ballard F. Smith Director
/s/ Roger W. Stone
- ------------------------------------
Roger W. Stone Director
/s/ Robert N. Thurston
- ------------------------------------
Robert N. Thurston Director
/s/ Fred L. Turner
- ------------------------------------
Fred L. Turner Senior Chairman and Director
/s/ B. Blair Vedder, Jr.
- ------------------------------------
B. Blair Vedder, Jr. Director
/s/ Michael L. Conley
- ------------------------------------
Michael L. Conley Executive Vice President and Chief
Financial Officer
/s/ Christopher Pieszko
- ------------------------------------
Christopher Pieszko Vice President and Corporate Controller
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II-5
EXHIBIT INDEX
EXHIBIT NO. PAGE NO.
----------- --------
1 Form of Underwriting Agreement. ....................... 19
4(a) Form of Senior Debt Securities Indenture between
McDonald's Corporation and First Union National Bank,
as Trustee (includng form of Senior Debt Security). . 35
4(b) Form of Subordinated Debt Securities Indenture between
McDonald's Corporation and First Union National Bank,
as Trustee (including form of Subordinated Debt Secu-
rity). .............................................. 81
5 Opinion and consent of Gloria Santona, Vice President,
Associate General Counsel and Secretary of the Compa-
ny. .................................................. 129
12 Statement re computation of ratios of earnings to fixed
charges.* ............................................ 130
23(a) Consent of Ernst & Young LLP, independent auditors.....
23(b) Consent of Gloria Santona, Vice President, Associate
General Counsel and Secretary of the Company is in-
cluded in Exhibit 5. .................................
24 Powers of Attorney (set forth on page II-4 of this Reg-
istration Statement). ................................
25 Statement of Eligibility and Qualification on Form T-1
of First Union National Bank, as Trustee. ............ 131
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herein by reference.
EXHIBIT 1
MCDONALD'S CORPORATION
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto
Dear Sirs:
1. INTRODUCTORY. McDonald's Corporation (the "Company"), a Delaware corporation, proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives", which term may refer to a single Representative if so indicated on Schedule I hereto), the principal amount of its securities identified in Schedule I hereto (the "Securities"), to be issued under an Indenture, [dated as of , 1996] [dated as of , 1996], as supplemented by Supplemental Indenture No. , to be dated as of , 199 (collectively, the "Indenture"), between the Company and First Union National Bank, as trustee (the "Trustee"). (If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives", as used herein, shall each be deemed to refer to such firm or firms.)
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") [two] a registration statement[s] on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act") (File No. 333-
[and File No. 33- ]), which has [have] become effective, for the
registration under the Securities Act of the Securities. Such registration
statement[s] meets [meet] the requirements set forth in Rule 415(a)(1)(i)
under the Securities Act and complies [comply] in all other material
respects with said Rule. The Company proposes to file with the Commission
pursuant to Rule 424(b)(2) or (b)(5) under the Securities Act a supplement
to the form of prospectus included in registration statement File No. 333-
relating to the Securities and the plan of distribution thereof or
(b), if the Company elects to rely on Rule 434 under the Securities Act, a
Term Sheet (as such term is hereinafter defined) relating to the Securities
that shall contain such information as is required or permitted by Rules
434 and 424(b) under the Securities Act. The registration statement[s] File
No. 333- [and File No. 33- ], including the exhibits thereto, is
[are] hereinafter [collectively] called the "Registration Statement"; the
prospectus in the form in which it appears in registration statement File
No. 333- [, which, pursuant to Rule 429 under the Securities Act, will
also be used in connection with the Securities registered pursuant to
registration statement File No. 33- ,] is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule 424(b)(2) or (b)(5)
(including the Basic Prospectus as so supplemented) or (ii), if the Company
elects to rely on Rule 434 under the Securities Act, in the form of the
Term Sheet as first filed with the Commission pursuant to Rule 424(b)(7)
(together with the Basic Prospectus), is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b) is hereinafter called the
"Preliminary Final Prospectus". Any abbreviated term sheet that satisfies
the requirements of Rule 434 under the Securities Act is hereinafter called
the "Term Sheet." Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or
before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Securities Act, when, prior to the
Closing Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and at the
Closing Date (as hereinafter defined), (i) the Registration Statement, as
amended as of any such time, the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Securities Act,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the Exchange Act and the respective rules and regulations thereunder and
(ii) neither the Registration Statement, as amended as of any such time,
nor the Final Prospectus, as amended or supplemented as of any such time,
will contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee, (ii) information,
if any, contained in the Registration Statement or Final Prospectus
relating to the Depository Trust Company ("DTC") and its book-entry system,
or (iii) the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation of
the Registration Statement and the Final Prospectus.
(c) The financial statements of the Company and its consolidated subsidiaries included in the Registration Statement fairly present the financial condition of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and cash flow for the periods therein specified; and said financial statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as otherwise stated therein. As used herein, "consolidated subsidiaries" means each subsidiary of the Company which is included in the consolidated financial statements of the Company contained in its annual report to shareholders for 1995 in accordance with the consolidation policies set forth therein or which would have been so included if it had been a subsidiary of the Company as of the date of such consolidated financial statements, and each other subsidiary of the Company which is included in consolidated financial statements of the Company prepared from time to time thereafter.
(d) Subsequent to the respective dates as of which information is given in the Registration Statement and the Final Prospectus and prior to the Closing Date hereinafter mentioned, except as set forth or contemplated in the Final Prospectus, (1) neither the Company nor any of its consolidated subsidiaries has entered into any transaction not in the ordinary course of business which is material to the Company and its consolidated subsidiaries, considered as a whole, (2) there has been no material adverse change in the properties, business, financial condition or results of operations of the Company and its consolidated subsidiaries, considered as a whole, and (3) no legal or governmental proceeding, which has or will have materially affected the Company or any of its consolidated subsidiaries, considered as a whole, or the transactions contemplated by this Agreement, has been or will have been instituted or threatened.
(e) The Company and each of its Significant Subsidiaries (herein defined to mean the list of the Company's domestic and foreign subsidiaries appearing in Exhibit 21 to the Company's Annual Report on Form 10-K for the year ended December 31, 1995) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their respective states or jurisdictions of incorporation, with corporate power and authority to own their properties and to conduct their business as described in the Basic Prospectus and Final Prospectus. The Company and each of its Significant Subsidiaries are duly qualified to do business as foreign corporations and are in good standing in all states or jurisdictions in which the ownership or lease of real property or the conduct of business requires such qualifications, except where failure to be so qualified cannot be reasonably expected to have a material adverse effect on the financial condition of the Company and its consolidated subsidiaries, considered as a whole. The Company owns all of the issued and outstanding shares of capital stock of each of the Significant Subsidiaries, directly or indirectly through one or more Significant Subsidiaries (except McDonald's Australia Limited and McDonald's Property Company Limited, of which the Company directly or indirectly owns a majority of the capital stock), and all of such shares of the Significant Subsidiaries are owned free and clear of any liens, charges and encumbrances.
(f) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof will not (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, the Restated Certificate of Incorporation or By-Laws of the Company as presently in effect or (ii) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party, or any order, rule or regulation applicable to the Company of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or any of its properties, except such conflicts, breaches or defaults referred to in this subclause (ii) which would not materially and adversely affect the Company and its consolidated subsidiaries considered as a whole.
(g) The Securities have been duly and validly authorized and, when issued, authenticated and delivered against payment therefor in accordance with the terms of the Indenture and this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting the enforceability of creditors' rights and general principles of equity, and will conform to the description thereof contained in the Final Prospectus. The Indenture has been duly authorized by the Company and will be a valid and legal instrument enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting the enforceability of creditors' rights and general principles of equity. The Indenture is duly qualified under the Trust Indenture Act.
3. SALE, PURCHASE AND DELIVERY OF SECURITIES. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company hereby agrees to sell to the Underwriters, severally and not jointly, and each Underwriter, severally and not jointly (unless otherwise indicated on Schedule I hereto), agrees to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Securities pursuant to delayed delivery arrangements, the respective principal amounts of Securities to be purchased by the Underwriters shall be as set forth in Schedule II hereto, less the respective amounts of Contract Securities determined as provided below. Securities to be purchased by the Underwriters are herein sometimes called the "Underwriters' Securities" and Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to solicit offers to purchase Securities from the Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the form of Schedule III hereto but with such changes therein as the Company may authorize or approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Company will pay to the Representatives, for the account of the Underwriters, on the Closing Date, the percentage set forth in Schedule I hereto of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The Company will make Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by the Underwriters have been approved by the Company but, except as the Company may otherwise agree, each such Delayed Delivery Contract must be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto. The Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount of Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the aggregate principal amount set forth in Schedule II hereto, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company in writing; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the aggregate principal amount set forth in Schedule II hereto, less the aggregate principal amount of Contract Securities.
Delivery of and payment for the Underwriters' Securities shall be made at the office, on the date and at the time specified in Schedule I hereto, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Underwriters' Securities being herein called the "Closing Date"). Delivery of the Underwriters' Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company in Federal (same day) funds, or, if so indicated on Schedule I hereto, in New York Clearinghouse (next day) funds. Certificates for the Underwriters' Securities shall be registered in such names and in such denominations as the Representatives may request not less than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for inspection, checking and packaging by the Representatives in New York, New York, not later than 1:00 PM on the business day prior to the Closing Date.
If so provided in Schedule I hereto, Underwriters' Securities will be represented by one or more definitive global Securities in book-entry form which will be deposited by or on behalf of the Company with DTC or DTC's designated custodian. In such case, (a) delivery of the Underwriters' Securities shall be made to the Representatives for the respective accounts of the several Underwriters by causing DTC to credit the Underwriters' Securities to the account of the Representatives at DTC, and (b) the Company will cause the certificates representing the Underwriters' Securities to be made available to the Representatives for inspection not later than 1:00 p.m., New York City time, on the business day prior to the Closing Date at the office of DTC or its designated custodian.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment to the Registration Statement or supplement (including the Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing, and the Company will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus to be filed with the Commission pursuant to Rule 424 and/or Rule 434 under the Securities Act. The Company will promptly advise the Representatives (i) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424 and/or Rule 434 under the Securities Act, (ii) when any amendment to the Registration Statement relating to the Securities shall have become effective, (iii) of any request by the Commission for any amendment of the Registration Statement or amendment of or supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly upon the request of the Representatives, any amendments or supplements to the Registration Statement or Final Prospectus which, in the opinion of counsel for the Underwriters, may be necessary to enable the several Underwriters to continue the sale of the Securities, and the Company will use its best efforts to cause any such amendments to become effective and any such supplements to be filed with the Commission and approved for use by the Underwriters as promptly as possible. If at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, any event relating to or affecting the Company occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statement therein not misleading, or if it is necessary at any time to amend or supplement the Final Prospectus to comply with the Securities Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or which will effect such compliance. For the purposes of this paragraph (b), the Company will furnish such information with respect to itself as the Representatives may from time to time reasonably request.
(c) As soon as practicable, but not later than 90 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, the Company will make generally available to its security holders and you an earnings statement covering a period of at least twelve months beginning not earlier than said effective date which shall satisfy the provisions of Section 11(a) of the Securities Act.
(d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing all documents relating to the offering.
(e) The Company will furnish such information and execute such instruments as may be required to qualify the Securities for sale under the securities or blue sky laws of such jurisdictions within the United States as you designate, will continue such qualifications in effect so long as required for distribution and will arrange for the determination of the legality of the Securities for purchase by institutional investors. The Company shall not be required to register or qualify as a foreign corporation nor, except as to matters and transactions relating to the offer and sale of the Securities, consent to service of process in any jurisdiction.
(f) So long as the Securities shall be outstanding, the Company will deliver to you (i) as soon as practicable after the end of each fiscal year, consolidated balance sheets, statements of income, retained earnings and cash flows of the Company and its consolidated subsidiaries, as at the end of and for such year and the last preceding year, all in reasonable detail and audited by independent public accountants, (ii) as soon as practicable after the end of each of the first three quarterly periods in each fiscal year, unaudited consolidated balance sheets, statements of income, retained earnings and cash flows of the Company and its consolidated subsidiaries, as at the end of and for such period and for the comparable period of the preceding year, all in reasonable detail, (iii) as soon as available, all such proxy statements,
financial statements and reports as the Company shall send or make available to its stockholders generally, and (iv) copies of all such annual, periodic and current reports as the Company or any subsidiary shall file with the Commission or any securities exchange.
(g) The Company will apply for the listing of the Securities on the New York Stock Exchange, Inc. if requested to do so by you.
(h) The Company will pay all costs and expenses in connection with the transactions herein contemplated, including, but not limited to, the fees and disbursements of its counsel; the fees, costs and expenses of preparing, printing and delivering the Indenture and the Securities; the fees, costs and expenses of the Trustee; accounting fees and disbursements; the costs and expenses in connection with the qualification or exemption of the Securities under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with any Blue Sky Memorandum; the costs and expenses in connection with the preparation, printing and filing of the Registration Statement (including exhibits thereto) and the Basic, Preliminary Final, and Final Prospectus, the preparation and printing of this Agreement and the furnishing to the Underwriters of such copies of each prospectus as the Underwriters may reasonably require; and the fees of rating agencies. It is understood, however, that, except as provided in this Section and in Sections 7 and 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel and any advertising expenses connected with any offers they may make.
(i) Until the business day following the Closing Date, the Company will not, without the consent of the Representatives, offer or sell, or announce the offering of, any debt securities (other than up to $150,000,000 principal amount of the Company's medium term notes to be issued pursuant to the Company's Registration Statements on Form S-3 (File Nos. 33-42642 and 33-60939)) covered by the Registration Statement or any other registration statement filed under the Securities Act.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the several Underwriters to purchase and pay for the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the written statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending, or, to the knowledge of the Company, shall be contemplated by the Commission.
(b) No event, nor any material adverse change in the condition of the Company, financial or otherwise, shall have occurred, nor shall any event exist which makes untrue or incorrect any material statement or information contained in the Registration Statement or the Final Prospectus or which is not reflected in the Registration Statement or the Final Prospectus, but should be reflected therein in order to make the statements or information contained therein not misleading.
(c) You shall not have advised the Company that the Registration Statement or any prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of counsel for the Underwriters, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) You shall have received at the Closing Date (or prior thereto as indicated) the following:
(i) An opinion from Gloria Santona, Vice President, Associate General Counsel and Secretary, or a Vice President and Assistant General Counsel of the Company, dated the Closing Date, to the effect that:
(A) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware with corporate power and authority to own its properties and conduct its business as described in the Final Prospectus.
(B) The Indenture has been duly authorized, executed and delivered by the Company and the Trustee, is duly qualified under the Trust Indenture Act, and is a valid and legally binding obligation of the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting the enforceability of creditors' rights and general principles of equity.
(C) The Securities have been duly and validly authorized by all necessary corporate action and, when duly executed on behalf of the Company, duly authenticated by the Trustee or the Trustee's authenticating agent, and duly delivered to the several Underwriters against payment therefor in accordance with the provisions of this Agreement, in the case of the Underwriters' Securities, or to the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of Contract Securities, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and entitled to all the benefits of the Indenture, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting the enforceability of creditors' rights and general principles of equity.
(D) The Indenture and the Securities conform as to legal matters with the statements concerning them made in the Final Prospectus, and such statements accurately set forth the provisions thereof required to be set forth in the Final Prospectus.
(E) This Agreement and any Delayed Delivery Contracts have been validly authorized, executed and delivered on behalf of the Company.
(F) The Registration Statement and any amendments thereto have become effective under the Securities Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, and the Registration Statement, the Final Prospectus, and each amendment thereof or supplement thereto (except for the financial statements and other financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act and the respective rules thereunder; such counsel has no reason to believe that either the Registration Statement or the Final Prospectus, or any such amendment or supplement, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Final Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel does not know of any legal or governmental proceedings required to be described in the Final Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Final Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required.
(G) The consummation of the transactions herein contemplated and the fulfillment of the terms hereof or of any Delayed Delivery Contracts will not result in a breach of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other agreement or instrument to which, to the knowledge of such counsel, the Company is a party, or the Restated Certificate of Incorporation or By-Laws of the Company as presently in effect or, to the knowledge of such counsel, any order, rule or regulation applicable to the Company of any court or of any federal or state regulatory body or administrative agency or other governmental body having jurisdiction over the Company or its properties.
(H) No authorization, approval, consent or other action of any governmental authority or agency is required in connection with the sale of the Securities as contemplated by this Agreement or in any Delayed Delivery Contracts except such as may be required under the Securities Act or under state securities or blue sky laws.
(ii) Such opinion or opinions of counsel for the Underwriters, dated the Closing Date, with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement, any Delayed Delivery Contracts, the validity of the Securities, the Registration Statement, the Final Prospectus and other related matters as you may reasonably request. The Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render their opinions. In connection with such opinions, such counsel may rely on representations or certificates of officers of the Company.
(iii) A certificate of the President or a Vice President, and the Chief Financial Officer of the Company or its Treasurer, dated the Closing Date, to the effect that:
(A) The representations and warranties of the Company in Section 2 of this Agreement are true and correct as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(B) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the respective signers of the certificate, are contemplated under the Securities Act.
(C) The signers of the certificate have carefully examined the Registration Statement and the Final Prospectus; neither the Registration Statement, the Final Prospectus nor any amendment or supplement thereto includes, as of the Closing Date, any untrue statement of a material fact or omits, as of the Closing Date, to state any material fact required to be stated therein or necessary to make the statements therein not misleading; since the latest respective dates as of which information is given in the Registration Statement, there has been no material adverse change in the financial position, business or results of operations of the Company and its consolidated subsidiaries, considered as a whole, except as set forth in or contemplated by the Final Prospectus; and since the effective date of the Registration Statement, as amended, no event has occurred which is required to be set forth in the Final Prospectus which has not been so set forth.
(iv) You shall have received a letter from Ernst & Young LLP, dated the Closing Date, addressed to you substantially in the form heretofore approved by you.
(e) Prior to the Closing Date, the Company shall have furnished to you such further certificates and documents as you may reasonably request.
(f) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company.
If any condition of the Underwriters' obligations hereunder required to be satisfied prior to the Closing Date is not so satisfied, this Agreement may be terminated by you by notice in writing or by facsimile transmission to the Company.
In rendering the opinions described in Sections 5(d)(i) and (ii) above, Ms. Gloria Santona, other counsel for the Company, and counsel for the Underwriters may, as to matters involving the laws of any state other than Illinois, rely upon the opinion or opinions of local counsel satisfactory to you, but in such case a signed copy of each such opinion shall be furnished to you.
All such opinions (including opinions, if any, of local counsel), certificates, letters and documents will be in compliance with the provisions hereof only if they are in all material respects satisfactory to you and to counsel for the Underwriters, as to which both you and such counsel shall act reasonably. The Company will furnish you with such conformed copies of such opinions, certificates, letters and documents as you request.
You, on behalf of the Underwriters, may waive in writing the compliance by the Company of any one or more of the foregoing conditions or extend the time for their performance.
6. REPRESENTATION OF THE UNDERWRITERS. Each of the Underwriters severally represents and warrants to the Company that the information furnished to the Company in writing by such Underwriter or by you expressly for use in the preparation of the Registration Statement or the Final Prospectus does not, and any amendments thereof or supplements thereto thus furnished will 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.
7. TERMINATION OF AGREEMENT. This Agreement may be terminated by you on behalf of the Underwriters by notice in writing delivered to the Company prior to the Closing Date if prior to such time (i) trading in the Company's common stock shall have been suspended by the Commission on the New York Stock Exchange for a period of twenty-four hours or more or trading in securities generally on the New York Stock Exchange shall have been suspended or materially limited, in either case to such a degree as would in your judgment materially adversely affect the market for the Securities; (ii) a general moratorium on commercial banking activities in the State of New York or the United States shall have been declared by Federal authorities; or (iii) there has occurred any material outbreak, or material escalation, of hostilities involving the United States or other national or international calamity or crisis, of such magnitude and severity in its effect on the financial markets of the United States, in your reasonable judgment, as to prevent or materially impair the marketing, or enforcement of contracts for sale, of the Securities.
If this Agreement shall be terminated by you because of any failure on the part of the Company to comply with any of the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company shall pay, in addition to the costs and expenses referred to in Section 4(h), all reasonable out-of-pocket expenses incurred by the Underwriters in contemplation of the performance by them of their obligations hereunder, including but not limited to the reasonable fees and disbursements of counsel for the Underwriters, the Underwriters' reasonable printing and traveling expenses, and postage and telephone charges relating directly to the offering contemplated by the Final Prospectus, and also including advertising expenses incurred after the effective date of the Registration Statement, it being understood that such out-of-pocket expenses shall not include any compensation, salaries or wages of the officers, partners or employees of any of the Underwriters.
The Company shall not in any event be liable to the several Underwriters for damages on account of loss of anticipated profits arising out of the transactions contemplated by this Agreement.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such controlling person may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement or any amendment thereof, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter and each such controlling person for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in the preparation thereof; and provided, further, that the foregoing indemnification with respect to the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities, if such Underwriter failed to send or give copies of the Final Prospectus, as amended or supplemented, excluding documents incorporated therein by reference, to such person at or prior to the written confirmation of the sale of such Securities to such person in any case where such delivery is required by the Securities Act and the untrue statement or omission of a material fact contained in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each person, if any, who controls the Company either within the meaning of the Securities Act or the Exchange Act, each of its directors and each of its officers who has signed the Registration Statement, against any losses, claims, damages or liabilities to which the Company, any such controlling person or any such director or officer may become subject, under the Securities Act, the Exchange Act, or otherwise, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through you specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page of the Final Prospectus and under the heading "Underwriting" or "Plan of Distribution" and, if Schedule I hereto provides for sale of Securities pursuant to delayed delivery arrangements, in the last sentence under the heading "Delayed Delivery Arrangements" in the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Final Prospectus, and you confirm that such statements are correct. This indemnity agreement will be in addition to any liability which each such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate in and, to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or in addition to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt by such indemnified party of notice from the indemnifying party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed such counsel in connection with the assumption of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Representatives of the Underwriters in the case of subparagraph (a), representing the indemnified parties under subparagraph (a) or (b), as the case may be, who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; provided, further, that, with respect to legal and other expenses incurred by an indemnified party for which an indemnifying party shall be liable hereunder, all such legal fees and expenses shall be reimbursed by the indemnifying party as they are incurred.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 8 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Company on grounds of policy or otherwise, the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Company and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount bears to the sum of such discount and the purchase price of the Securities set forth in Schedule I hereto and the Company is responsible for the balance; provided, however, that (i) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount applicable to the Securities purchased by such Underwriter hereunder and (ii) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of the Securities Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Securities Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clause (i) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If the Underwriters' obligations to purchase Securities pursuant to Section 3 hereof are several and not joint and if any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement and unless otherwise provided in Schedule I hereto, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II hereto bear to the aggregate amount of Securities set opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective indemnities, agreements, representations and warranties of the Company and the several Underwriters, set forth in or made pursuant to this Agreement, will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, the Company or any of its officers or directors or any controlling person, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or sent by facsimile transmission and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or sent by facsimile transmission and confirmed to the Company at One McDonald's Plaza, Oak Brook, Illinois 60521, Attention of the Treasurer, with a copy to the Controller.
12. SUCCESSORS; GOVERNING LAW. This Agreement will inure to the benefit of and be binding upon the parties hereto and the officers and directors and controlling persons referred to in Section 8 hereof and their respective successors, assigns, heirs, executors and administrators, and no other persons will have any right or obligation hereunder. The terms "successors" and "assigns" as used herein shall not include a purchaser as such from any Underwriter. This Agreement shall be governed by and construed and enforced in accordance with, the internal laws of the State of Illinois.
13. BUSINESS DAY. For purposes of this Agreement, "business day" means any day on which the New York Stock Exchange is open for trading.
If the foregoing is in accordance with your understanding of our agreement,
sign and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
MCDONALD'S CORPORATION
By: _________________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted by us in Chicago, Illinois, acting on behalf of ourselves, the other Rep- resentatives (if any), and the sev- eral Underwriters (if any) named in Schedule II annexed hereto, as of the date first above written. |
[NAME OF REPRESENTATIVE]
By: _________________________________
Date:
SCHEDULE I
UNDERWRITING AGREEMENT DATED
REGISTRATION STATEMENT NO.
REPRESENTATIVES:
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Title:
Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriter (include accrued interest or amortization if applicable):
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions:
Sinking Fund Provisions:
Other Provisions:
SALE AND DELIVERY PROVISIONS UNDER SECTION 3:
Obligation to Purchase is:
several and not joint [_]
several and not joint; provided, however that,
notwithstanding the provisions of Section 9 of the
Underwriting Agreement, the Representative(s)
listed above will, subject to the terms and
conditions hereof, purchase or cause to be
purchased any Securities which any defaulting
Underwriter or Underwriters have agreed but failed
or refused to purchase pursuant to Section 3
hereof [_]
joint and several [_]
Payment to Be Made in: New York Clearinghouse (next day) funds [_]
or Federal (same day) funds [_]
Delivery of Securities: Physical delivery to Underwriters through
Representatives [_]
or delivery to Underwriters through facilities of
DTC by delivery to DTC of one or more definitive
global securities in book-entry form [_]
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CLOSING DATE, TIME AND LOCATION:
[Delayed Delivery Arrangements:
Payment to Be Made in: New York Clearinghouse (next day) funds [_]
or Federal (same day) funds [_]
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:]
ADDRESS FOR NOTICE TO REPRESENTATIVES:
SCHEDULE II
UNDERWRITERS PRINCIPAL AMOUNT
------------ ----------------
------------
Total.......................................... $
============
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SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from McDonald's Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on ,
19 , (the "Delivery Date"), $
principal amount of the Company's
(the "Securities") offered by the Company's Final Prospectus
dated , 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus accrued interest,
if any, thereon from , 19 , to the date of payment and delivery, and
on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 AM on the Delivery Date to or upon the order of the Company in New York Clearinghouse (next day) funds or Federal (same day) funds, as specified in Schedule I to the Underwriting Agreement referred to in the Final Prospectus mentioned above, at your office or at such other places as shall be agreed between the Company and the undersigned upon delivery to the undersigned of the Securities in definitive fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
and (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters")
such principal amount of the Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Final Prospectus mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed and enforced in accordance with, the internal laws of the State of Illinois.
Very truly yours,
By __________________________________
(Signature and Title of Officer)
Accepted:
McDONALD'S CORPORATION
By __________________________________
(Authorized Signature)
EXHIBIT 4(A)
MCDONALD'S CORPORATION
AND
FIRST UNION NATIONAL BANK
TRUSTEE
INDENTURE
DATED AS OF ________ ___ , 1996
SENIOR DEBT SECURITIES
REFERENCE SHEET*
Reference is made to the following provisions of the Trust Indenture Act of 1939, as amended, which establish certain duties and responsibilities of the Company and the Trustee which may not be set forth in this Indenture:
SECTION SUBJECT
------- -------------------------------
310(b) Disqualification of the Trustee
for conflicting interest
311 Preferential collection of
claims of the Trustee as
creditor of the Company
312(a) Periodic filing of information
by the Company with the
Trustee
312(b) Access of Holders to
information
313(a) Annual report of the Trustee to
Holders
313(b) Additional reports of the
Trustee to Holders
313(d) Filing of reports with stock
exchanges and Commission
314(a) Reports by the Company,
including annual compliance
certificate
314(c) Evidence of compliance with
conditions precedent
315(a) Duties of the Trustee prior to
default
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SECTION SUBJECT ------- ------------------------------------------------------------------------ 315(b) Notice of default from the Trustee to Holders 315(c) Duties of the Trustee in case of default 315(d) Provisions relating to responsibility of the Trustee 315(e) Assessment of costs against litigating Holders in certain circumstances 316(a) Directions and waivers by Holders in certain circumstances 316(b) Prohibition of impairment of right of Holders to payment 316(c) Right of the Company to set record date for certain purposes 317(a) Special powers of the Trustee 317(b) Duties of paying agents 318(a) Provisions of Trust Indenture Act of 1939 to control in case of conflict |
TABLE OF CONTENTS*
ARTICLE ONE
DEFINITIONS
SECTION PAGE
------- ----
Section 1.01. Definitions............. 1
Authenticating Agent.... 1
Board of Directors...... 1
Company................. 1
Company Request......... 1
Debt Security........... 2
Designated Officers..... 2
Dollars................. 2
Event of Default........ 2
Holder.................. 2
Indenture............... 2
Interest................ 2
Officers' Certificate... 2
Opinion of Counsel...... 2
Original Issue Discount
Security................ 2
Outstanding............. 2
Person.................. 3
Place of Payment........ 3
Principal Office of the
Trustee................. 3
Principal Property...... 3
Responsible Officer..... 3
Restricted Subsidiary... 3
Subsidiary.............. 3
Trustee................. 3
Trust Indenture Act of
1939.................... 4
U.S. Government
Obligations............. 4
Yield to Maturity....... 4
ARTICLE TWO
DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
Section 2.01. Forms................... 4
Section 2.02. Amount Unlimited;
Issuable in Series...... 5
Section 2.03. Authentication.......... 6
Section 2.04. Date and Denomination of
Debt Securities......... 7
Section 2.05. Execution of Debt
Securities.............. 7
Section 2.06. Exchange and
Registration of Transfer
of Debt Securities...... 8
Section 2.07. Mutilated, Destroyed,
Lost or Stolen Debt
Securities.............. 9
Section 2.08. Temporary Debt
Securities.............. 9
Section 2.09. Cancellation of Debt
Securities Paid ........ 10
Section 2.10. Computation of Interest. 10
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ARTICLE THREE
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
SECTION PAGE
------- ----
Section 3.01. Applicability of Article................................. 10
Section 3.02. Notice of Redemption; Selection of Debt Securities....... 10
Section 3.03. Payment of Debt Securities Called for Redemption......... 11
Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities............................................... 11
Section 3.05. Redemption of Debt Securities for Sinking Fund........... 12
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest............... 13
Section 4.02. Offices for Notices and Payments ........................ 13
Section 4.03. Appointments to Fill Vacancies in Trustee's Office....... 13
Section 4.04. Provisions as to Paying Agent............................ 14
Section 4.05. Statement as to Compliance............................... 14
Section 4.06. Limitation on Liens...................................... 14
ARTICLE FIVE
HOLDER LISTS
AND REPORTS BY THE TRUSTEE
Section 5.01. Holder Lists............................................. 16
Section 5.02. Delivery of Reports by the Trustee....................... 16
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default........................................ 16
Section 6.02. Payment of Debt Securities on Default; Suit Therefor..... 18
Section 6.03. Application of Moneys Collected by Trustee............... 19
Section 6.04. Proceedings by Holders of Debt Securities................ 20
Section 6.05. Proceedings by Trustee................................... 20
Section 6.06. Remedies Cumulative and Continuing....................... 20
Section 6.07. Direction of Proceedings and Waiver of Defaults by
Holders of Debt Securities............................... 21
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION PAGE
------- ----
Section 7.01. Reliance on Documents and Opinions........................ 21
Section 7.02. Responsibility for Recitals............................... 22
Section 7.03. Ownership of Debt Securities.............................. 22
Section 7.04. Moneys to be Held in Trust................................ 22
Section 7.05. Compensation and Expenses of Trustee...................... 22
Section 7.06. Officers' Certificate as Evidence......................... 22
Section 7.07. Eligibility of Trustee.................................... 23
Section 7.08. Resignation or Removal of Trustee......................... 23
Section 7.09. Acceptance by Successor Trustee........................... 24
Section 7.10. Succession by Merger...................................... 25
Section 7.11. Authenticating Agents..................................... 25
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Action by Holders......................................... 26
Section 8.02. Proof of Execution by Holders............................. 26
Section 8.03. Who Are Deemed Absolute Owners............................ 26
Section 8.04. Company-Owned Debt Securities Disregarded................. 26
Section 8.05. Revocation of Consents; Future Holders Bound.............. 26
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings...................................... 27
Section 9.02. Call of Meetings by Trustee............................... 27
Section 9.03. Call of Meetings by the Company or Holders................ 27
Section 9.04. Qualifications for Voting................................. 27
Section 9.05. Regulations............................................... 28
Section 9.06. Voting.................................................... 28
Section 9.07. No Delay of Rights by Meeting............................. 28
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION PAGE
------- ----
Section 10.01. Supplemental Indentures without Consent of Holders....... 29
Section 10.02. Supplemental Indentures with Consent of Holders.......... 29
Section 10.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.................................. 30
Section 10.04. Notation on Debt Securities.............................. 30
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee........................................ 30
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate Except Under Certain
Conditions.............................................. 31
Section 11.02. Successor Corporation to be Substituted.................. 31
Section 11.03. Documents to be Given Trustee............................ 31
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE OR CERTAIN OBLIGATIONS
Section 12.01. Discharge of Indenture................................... 31
Section 12.02. Discharge of Obligations................................. 32
Section 12.03. Deposited Moneys to be Held in Trust by Trustee.......... 33
Section 12.04. Paying Agent to Repay Moneys Held........................ 33
Section 12.05. Return of Unclaimed Moneys............................... 33
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Indenture and Debt Securities Solely Corporate
Obligations............................................. 33
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's Successors............... 34
Section 14.02. Official Acts by Successor Corporation................... 34
Section 14.03. Addresses for Notices.................................... 34
Section 14.04. Governing Law............................................ 34
Section 14.05. Legal Holidays........................................... 34
Section 14.06. Table of Contents and Headings........................... 34
Section 14.07. Execution in Counterparts................................ 34
Section 14.08. Separability............................................. 34
Section 14.09. Benefits................................................. 34
EXHIBIT A Form of Note
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This Indenture, dated as of , 1996 between McDonald's Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), and First Union National Bank, a national banking association (the "Trustee").
WITNESSETH:
Whereas, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured bonds, debentures, notes and other evidences of indebtedness to be issued in one or more series as in this Indenture provided;
Whereas, all acts and things necessary to make this Indenture, when duly executed and delivered by the parties hereto, a valid agreement of the Company according to its terms, have been done and performed, and the execution and delivery by the Company of this Indenture have in all respects been duly authorized;
Now, therefore:
In order to declare the terms and conditions upon which the Debt Securities are authenticated, issued and received, and in consideration of the premises and the purchase of the Debt Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debt Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended, or which are by reference therein defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. 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.
"Authenticating Agent" means any agent or agents of the Trustee which at the time shall be appointed and acting pursuant to Section 7.11.
"Board of Directors" means the Board of Directors of the Company, or any duly authorized committee of that Board including, without limitation, the Executive Committee of the Board of Directors.
"Company" means McDonald's Corporation, a Delaware corporation, until any successor corporation shall have become such pursuant to the provisions of Article Eleven, and thereafter "Company" shall mean such successor, except as otherwise provided in Article Eleven.
"Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by the Chairman of the Board, Vice Chairman of the Board, President or any Vice President, and by its Chief Financial Officer, Treasurer, an Assistant Treasurer, Controller, an Assistant Controller, Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Debt Security" or "Debt Securities" means any debt security or debt securities of the Company, as the case may be, issued, authenticated and delivered under this Indenture.
"Designated Officers" means such officers of the Company as are authorized pursuant to a resolution of the Board of Directors to issue Debt Securities, to the extent authorized by such resolution and applicable law.
"Dollars" and "$" mean the lawful currency of the United States of America.
"Event of Default" has the meaning specified in Section 6.01.
"Holder", or other similar terms, means any person in whose name at the time a particular Debt Security is registered on the books of the Company kept for that purpose in accordance with the terms hereof.
"Indenture" means this instrument as originally executed or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of particular series of Debt Securities established as contemplated hereunder.
"interest" when used with respect to a non-interest bearing Debt Security, means interest payable after the principal thereof has become due and payable whether at maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund, or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or any Vice President and by the Chief Financial Officer, Controller, an Assistant Controller, Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company. Each such certificate shall comply with Section 314(c) of the Trust Indenture Act of 1939, to the extent applicable.
"Opinion of Counsel" means an opinion in writing signed by legal counsel, who
may be an employee of or of counsel to the Company or the Trustee, or may be
other counsel satisfactory to the Trustee. Each such opinion shall comply with
Section 314(c) of the Trust Indenture Act of 1939, to the extent applicable.
"Original Issue Discount Security" means any Debt 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 6.01.
"Outstanding", when used with reference to Debt Securities, shall, except as otherwise required by the Trust Indenture Act of 1939 and subject to the provisions of Section 8.04, mean, as of any particular time, all Debt Securities authenticated and delivered by the Trustee or any duly appointed Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore cancelled by the Trustee, Authenticating Agent or paying agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company for the Holders of such Debt Securities (if the Company shall act as its own paying agent), provided that if such Debt Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been mailed as in Article Three provided, or provision satisfactory to the Trustee shall have been made for mailing such notice; and
(c) Debt Securities in lieu of or in substitution for which other Debt Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, unless proof satisfactory to the Company is presented that any such Debt Securities are held by persons in whose hands any of such Debt Securities is a valid, binding and legal obligation of the Company.
In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of all series of Outstanding Debt Securities denominated in a currency other than U.S. Dollars have given any request, demand, authorization, direction, notice, consent or waiver hereunder, and for the purpose of Sections 4.06 and 9.05 herein, the principal amount of such Outstanding Debt Securities shall be deemed to be that amount of U.S. Dollars that could be obtained for such principal amount on the basis of the spot rate of exchange for purchasing U.S. Dollars with such currency as of the date of determination.
"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 a city or any political subdivision thereof designated as such pursuant to Sections 2.02 and 4.02.
"Principal Office of the Trustee", or other similar term, means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 123 South Broad Street, Philadelphia, Pennslyvania 19109, Attention: Corporate Trust Administration.
"Principal Property" means all real property owned by the Company or any Restricted Subsidiary which is located within the continental United States of America and, in the opinion of the Board of Directors, is of material importance to the total business conducted by the Company and its consolidated affiliates as an entity.
"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 president, any executive vice president, any senior vice president, any vice president, any assistant vice president, the cashier, any assistant cashier, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any senior trust officer, any trust officer, any assistant trust officer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary (i) substantially all the
property of which is located within the continental United States of America,
(ii) which owns Principal Property and (iii) in which the Company's investment,
direct or indirect and whether in the form of equity, debt, advances or
otherwise, is in excess of U.S. $1,000,000,000 as shown on the books of the
Company as of the end of the fiscal year immediately preceding the date of
determination; provided, however, that "Restricted Subsidiary" shall not
include any Subsidiary primarily engaged in financing activities, primarily
engaged in the leasing of real property to persons other than the Company and
its Subsidiaries, or which is characterized by the Company as a temporary
investment.
"Subsidiary" means any corporation or other Person of which the Company, or the Company and one or more Subsidiaries, or any one or more Subsidiaries, directly or indirectly owns voting securities or other similar equity interests entitling the owners thereof to elect a majority of the directors or individuals holding similar positions in other Persons, either at all times or so long as there is no default or contingency which permits the owners of any other class or classes of securities or other interests to vote for the election of one or more directors or individuals holding similar positions in other Persons, but shall not include any
corporation or other Person with respect to which the Company or any other Subsidiary has become entitled to elect a majority of the directors or individuals holding similar positions in other Persons solely due to a default or other contingency which is temporary in character and has had a continuous existence of less than one year.
"Trustee" means First Union National Bank and, subject to the provisions of Article Seven hereof, shall also include its successors and assigns as Trustee hereunder. If pursuant to the provisions of this Indenture there shall be at any time more than one Trustee hereunder, the term "Trustee" as used with respect to Debt Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture, except as provided in Section 10.03.
"U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clause (i) or (ii) 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 U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity, calculated at the time of issuance of Debt Securities or, if applicable, at the most recent redetermination of interest on such series and calculated in accordance with accepted financial practice.
ARTICLE TWO
DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. FORMS. (a) The Debt Securities of each series shall be in substantially the form of Exhibit A to this Indenture or in substantially such other form as shall be established by or pursuant to a resolution of the Board of Directors of the Company 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 legends or endorsements placed thereon as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Debt Securities of such series may be listed, or to conform to usage.
The Trustee's Certificate of Authentication on all Debt Securities shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein provided for in the within-mentioned Indenture.
First Union National Bank, as Trustee
By __________________________________ Authorized Representative
An Authenticating Agent's certificate of authentication on all Debt Securities which may be authenticated by an Authenticating Agent shall be in substantially the following form:
AUTHENTICATING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein provided for in the within-mentioned Indenture.
[Name of Authenticating Agent], as Authenticating Agent for the Trustee
By __________________________________ Authorized Representative
(b) The resolutions adopted by the Board of Directors, or the indenture supplemental hereto, establishing the form and terms of the Debt Securities of any series pursuant to Sections 2.01 and 2.02, respectively, of this Indenture, may provide for issuance of the Debt Securities in global form. If Debt Securities of a series are so authorized to be issued in global form, any such global Debt Security may provide that it shall represent the aggregate amount of Debt Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Debt Securities represented thereby may from time to time be reduced. Any endorsement of a Debt Security in global form to reflect any decrease in the amount or changes in the rights of Holders of Debt Securities represented thereby shall be made in such manner and by such person or persons as shall be specified therein.
SECTION 2.02. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal amount of Debt Securities which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be established in or pursuant to a resolution or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series,
(1) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to Section 2.06, 2.07, 2.08, 3.03 or 10.04);
(3) the date or dates on which the principal and premium, if any, of the Debt Securities of the series is payable;
(4) the rate or rates, or the method of determination thereof, at which
the Debt Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and, if other than as set forth in
Section 2.04, the record dates for the determination of Holders to whom
interest is payable;
(5) if an Original Issue Discount Security, the Yield to Maturity;
(6) the place or places (the "Place of Payment") where the principal of, and premium, if any, and any interest on Debt Securities of the series shall be payable;
(7) the price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01;
(11) the non-application of, addition to, or change in, any of the Events of Default with respect to the Debt Securities of the series, and the remedies with respect thereto;
(12) in the case of any series of non-interest bearing Debt Securities, the "stated intervals" for purposes of Section 312(a) of the Trust Indenture Act of 1939;
(13) the currency or currencies in which payments on the Debt Securities are payable, which may include United States or any foreign currency and any unit of two or more currencies; and
(14) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any such indenture supplemental hereto.
SECTION 2.03. AUTHENTICATION. The Debt Securities of each series shall be issuable in such form and in such denominations as shall be specified as contemplated by Section 2.02. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debt Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article Two, the Trustee shall thereupon authenticate, or cause the Authenticating Agent to authenticate, and deliver said Debt Securities to or upon Company Order. In authenticating, or causing to be authenticated, such Debt Securities, and accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Trustee and the Authenticating Agent shall be entitled to receive and (subject to the requirements of Section 315 of the Trust Indenture Act of 1939) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors, certified by the Secretary or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate prepared in accordance with the requirements of Section 314(c) of the Trust Indenture Act of 1939 and setting forth the terms of the Debt Securities as required pursuant to Sections 2.01 and 2.02, respectively;
(4) an Opinion of Counsel for the Company prepared in accordance with the requirements of Section 314(c) of the Trust Indenture Act of 1939 which shall also state:
(a) that the form of such Debt Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.01 in conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.02 in conformity with the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and delivered by the Trustee or the Authenticating Agent and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles;
(d) that all applicable laws and requirements in respect of the execution and delivery by the Company of the Debt Securities have been complied with and that authentication and delivery of the Debt Securities by the Trustee or the Authenticating Agent will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver, or to cause the Authenticating Agent to decline to authenticate and deliver, any Debt Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.
SECTION 2.04. DATE AND DENOMINATION OF DEBT SECURITIES. The Debt Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 2.02. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any multiple of $1,000. Debt Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Company executing the same may determine with the approval of the Trustee.
The person in whose name any Debt Security of a particular series is registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date for such series shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such Debt Security upon any registration of transfer or exchange subsequent to the record date and prior to such interest payment date; provided, however, that if and to the extent that the Company shall default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose names Outstanding Debt Securities of such series are registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of such Debt Securities not less than 15 days preceding such subsequent record date, such record date to be not less than five days preceding the date of payment of such defaulted interest. Except as otherwise specified as contemplated by Section 2.02 for Debt Securities of a particular series, the term "record date" as used in this Section with respect to any regular interest payment date, shall mean the last day of the calendar month preceding such interest payment date if such interest payment date is the fifteenth day of the calendar month, and shall mean the fifteenth day of the calendar month preceding such interest payment date if such interest payment date is the first day of a calendar month, whether or not such day shall be a day on which banking institutions in The City of New York are authorized or required by law or executive order to close or remain closed.
Interest on the Debt Securities may at the option of the Company be paid by check mailed to the persons entitled thereto at their respective addresses as such appear on the registry books of the Company or by wire transfer payable to an account specified by such persons.
SECTION 2.05. EXECUTION OF DEBT SECURITIES. The Debt Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board, its Vice Chairman of the Board, or President or a Vice President and by its Treasurer or its Secretary or an Assistant Treasurer or Assistant Secretary, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form herein recited, executed by the Trustee or the Authenticating Agent, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee or the Authenticating Agent upon any Debt Security executed by the Company shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Debt Securities shall cease to be such officer before the Debt Securities so signed shall have been authenticated and delivered by the Trustee or the Authenticating Agent, or disposed of by the Company, such Debt Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Debt Securities had not ceased to be such officer of the Company; and any Debt Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Debt Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF DEBT SECURITIES. Debt Securities of any series may be exchanged for a like aggregate principal amount and maturity of Debt Securities of the same series in other authorized denominations. Debt Securities to be exchanged shall be surrendered, at the option of the Holders thereof, at any of the offices or agencies as may be designated and maintained by the Company for such purpose in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Debt Security or Debt Securities which the Holder making the exchange shall be entitled to receive. Each person designated by the Company pursuant to the provisions of Section 4.02 as a person authorized to register and register transfer of the securities is sometimes herein referred to as a "Debt Security registrar".
The Company shall keep, at each such office or agency, a register for each series of Debt Securities issued hereunder (the registers of all Debt Security registrars being herein sometimes collectively referred to as the "Debt Security register" or the "registry books of the Company") in which, subject to such reasonable regulations as it may prescribe, the Company shall register securities and shall register the transfer of Debt Securities as in this Article Two provided. The Debt Security register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Debt Security register shall be open for inspection by the Trustee and any security registrar other than the Trustee. Upon due presentment for registration of transfer of any Debt Security of any series at any designated office or agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Debt Security or Debt Securities of the same series for an equal aggregate principal amount. Registration or registration of transfer of any Debt Security by any Debt Security registrar in the registry books of the Company maintained by such Debt Security registrar, and delivery of such Debt Security, duly authenticated, shall be deemed to complete the registration or registration of transfer of such Debt Security.
The Company will at all times designate one person (who may be the Company and who need not be a Debt Security registrar) to act as repository of a master list of names and addresses of the Holders of the Debt Securities. The Company shall act as such repository unless and until some other person is, by written notice from the Company to the Trustee and each Debt Security registrar, designated by the Company to act as such. The Company shall cause each Debt Security registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such registrar, as may be necessary to enable such repository to maintain such master list on as current a basis as is practicable.
No person shall at any time be designated as or act as a Debt Security registrar unless such person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations.
All Debt Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Debt 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 therewith.
The Company shall not be required to exchange or register a transfer of (a) any Debt Securities of any series for the period of 15 days next preceding the selection of Debt Securities of that series to be redeemed and thereafter until the day of the mailing of a notice of redemption of Debt Securities of that series selected for redemption, or (b) any Debt Securities selected, called or being called for redemption in whole or in part except, in the case of any Debt Security to be redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES. In case any temporary or definitive Debt Security shall become mutilated or be destroyed, lost or stolen, the Company in the case of a mutilated Debt Security shall, and in the case of a lost, stolen or destroyed Debt Security may in its discretion, execute and, upon the written request or authorization of any officer of the Company, the Trustee or the Authenticating Agent shall authenticate and deliver, a new Debt Security of the same series, bearing a number not contemporaneously outstanding in exchange and substitution for the mutilated Debt Security, or in lieu of and in substitution for the Debt Security so destroyed, lost or stolen. In every case the applicant for a substituted Debt Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of such Debt Security and of the ownership thereof.
Upon the issuance of any substitute Debt Security, 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 connected therewith. In case any Debt Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Debt Security, pay or authorize the payment of such Debt Security (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Debt Security and the ownership thereof.
Every substitute Debt Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Debt Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company as
herein provided, whether or not the destroyed, lost or stolen Debt Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of
the same series duly issued hereunder. All Debt Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities and shall preclude (to the extent lawful) any and all
other rights or remedies with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. TEMPORARY DEBT SECURITIES. Pending the preparation of definitive Debt Securities of any series the Company may execute and the Trustee or Authenticating Agent shall authenticate and deliver temporary Debt Securities (printed, lithographed or typewritten). Temporary Debt Securities shall be issuable in any authorized denomination and substantially in the form of the definitive Debt Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as may be determined by the Company. Every such temporary Debt Security shall be authenticated by the Trustee or the Authenticating Agent upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Debt Securities in lieu of which they are issued.
Without unreasonable delay the Company will execute and deliver to the Trustee definitive Debt Securities of such series and thereupon any or all temporary Debt Securities of such series may be surrendered in exchange therefor, at the option of the Holders thereof, at any offices or agencies as may be designated and maintained by the Company for such purpose in accordance with the provisions of Section 4.02, and the Trustee or the Authenticating Agent shall authenticate and deliver in exchange for such temporary Debt Securities an equal aggregate principal amount and maturity of definitive Debt Securities of the same series. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of the same series.
SECTION 2.09. CANCELLATION OF DEBT SECURITIES PAID. All Debt Securities surrendered for the purpose of payment, redemption, repayment, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company, any Debt Security registrar, any Authenticating Agent, any paying agent or any other agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee may dispose of cancelled Debt Securities in accordance with its standard procedures and deliver a certificate of such disposition to the Company or, at the written request of the Company, shall deliver cancelled Debt Securities to the Company. If the Company shall acquire any of the Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Debt Securities unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.10. COMPUTATION OF INTEREST. Except as otherwise specified as contemplated by Section 2.02 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
SECTION 3.01. APPLICABILITY OF ARTICLE. The provisions of this Article Three shall be applicable, as the case may be, (i) to the Debt Securities of any series which are redeemable before their maturity and (ii) to any sinking fund for the retirement of Debt Securities of any series, in either case except as otherwise specified as contemplated by Section 2.02 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Debt 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 Debt Securities of any series is herein referred to as an "optional sinking fund payment".
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES. In case the Company shall desire to exercise any right to redeem all, or, as the case may be, any part of, the Debt Securities of any series in accordance with their terms, it shall fix a date for redemption and shall mail or cause to be mailed a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities of such series so to be redeemed as a whole or in part at their last addresses as the same appear on the registry books of the Company and to the Trustee, except as the resolution adopted by the Board of Directors or the provisions of an indenture supplemental hereto to establish the terms of any series of Debt Securities may otherwise provide. Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Debt Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which the Debt Securities of such series are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Debt Securities of a series are to be redeemed the notice of redemption shall specify the number or numbers of the Debt Securities of that series to be redeemed. In case any Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities of that series in principal amount equal to the unredeemed portion thereof will be issued.
On or before the redemption date specified in the notice of redemption given as provided in this Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or if the Company is acting as its own paying agent will segregate and hold in trust as provided in Section 4.04) an amount of money sufficient to redeem on the redemption date all the Debt Securities or portions thereof so called for redemption, together with accrued interest thereon to the date fixed for redemption. If less than all the Debt Securities of a series are to be redeemed the Company will give the Trustee notice not less than 50 days prior to the redemption date as to the aggregate principal amount and maturity of Debt Securities of such series to be redeemed. The Trustee shall select in such manner as it shall deem appropriate and fair or cause to be selected by lot, the Debt Securities of that series or portions thereof to be redeemed and shall promptly notify the Company in writing of the Debt Securities to be redeemed. Debt Securities of a series may be redeemed in part only in multiples of the smallest authorized denomination of that series.
SECTION 3.03. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If notice of redemption has been given as provided in Section 3.02 or Section 3.05, the Debt Securities or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with any interest accrued to the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Debt Securities or portions of such Debt Securities, together with any interest accrued to said date) any interest on the Debt Securities of such series or portions of Debt Securities of such series so called for redemption shall cease to accrue. On presentation and surrender of such Debt Securities at a place of payment in said notice specified, such Debt Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with any interest accrued thereon to the date fixed for redemption; provided, however, that any installment of interest becoming due on or prior to the date fixed for redemption shall be payable to Holders of such Debt Securities registered as such on the relevant record date according to their terms.
Upon presentation of any Debt Security redeemed in part only, the Company shall execute a new Debt Security or Debt Securities and the Trustee or the Authenticating Agent shall authenticate and deliver to the Holder thereof, at the expense of the Company, such new Debt Security or Debt Securities of the same series, of authorized denominations, in an aggregate principal amount equal to the unredeemed portion of the Debt Security so presented.
SECTION 3.04. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH DEBT SECURITIES. In lieu of making all or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Debt Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Debt Securities of that series which have been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Debt Securities; provided that such Debt Securities have not been previously so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Debt Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 3.05. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not less than 50 days prior to each sinking fund payment date for any series of Debt Securities, the Company will deliver to the Trustee a certificate signed by a Vice President or the Treasurer or any Assistant Treasurer of the Company 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 (which cash may be deposited with the Trustee or with one or more paying agents, or if the Company is acting as its own paying agent segregated and held in trust as provided in Section 4.04) and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant to Section 3.04 (which Debt Securities, if not theretofore delivered, will accompany such certificate, such certificate to set forth the basis for such credit and to state that such Debt Securities have not been previously so credited) 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 also state that no Event of Default has occurred and is continuing 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 (or to deliver the Debt Securities specified in this paragraph), 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 Debt Securities subject to a mandatory sinking fund payment without the option to deliver or credit Debt Securities as provided in Section 3.04 and without the right to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request or determine) with respect to the Debt Securities of any particular
series shall be applied by the Trustee (or by the Company if the Company is
acting as its own paying agent) on the sinking fund payment date on which such
payment is made (or, if such payment is made before a sinking fund payment
date, on the next sinking fund payment date following the date of such payment)
to the redemption of such Debt Securities at the redemption price specified in
such Debt Securities for operation of the sinking fund together with accrued
interest, if any, to the date fixed for redemption. Any sinking fund moneys not
so applied or allocated by the Trustee (or by the Company if the Company is
acting as its own paying agent) to the redemption of Debt Securities shall be
added to the next cash sinking fund payment received by the Trustee (or if the
Company is acting as its own paying agent, segregated and held in trust as
provided in Section 4.04) for such series and, together with such payment (or
such amount so segregated), shall be applied in accordance with the provisions
of this Section 3.05. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee (or if the Company is
acting as its own paying agent, segregated and held in trust as provided in
Section 4.04) on the last sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of
particular Debt Securities of such series shall be applied by the Trustee (or
by the Company if the Company is acting as its own paying agent), together with
other moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Debt Securities of that series
at maturity.
The Trustee shall select or cause to be selected the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the notice of redemption shall also state that the Debt Securities are being redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Section 3.03.
On or before each sinking fund payment date, the Company shall pay to the Trustee in cash (or if the Company is acting as its own paying agent will segregate and hold in trust as provided in Section 4.04) a sum equal to any interest accrued to the date fixed for redemption of Debt Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities of a series with sinking fund moneys or mail any notice of redemption of such Debt Securities by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on such Debt Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to such Debt Securities, except that if the notice of redemption of any such Debt Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee (or the Company if the Company is acting as its own paying agent) shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of such Debt Securities; provided, however, that in case such default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Debt Securities on which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company covenants and agrees for the benefit of each series of Debt Securities that it will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest, if any, on each of the Debt Securities of that series at the places, at the respective times and in the manner provided in such Debt Securities.
SECTION 4.02. OFFICES FOR NOTICES AND PAYMENTS. As long as any of the Debt Securities of a series remain outstanding, the Company will designate and maintain, an office or agency in such Place of Payment where the Debt Securities of that series may be presented for payment, an office or agency where the Debt Securities of that series may be presented for registration of transfer and for exchange as in this Indenture provided and an office or agency where notices and demands to or upon the Company in respect of the Debt Securities of that series or this Indenture may be served. In addition to such office or offices or agency or agencies, the Company may from time to time designate and maintain one or more additional offices or agencies, where the Debt Securities of that series may be presented for registration of transfer or for exchange, and the Company may from time to time rescind such designation, as it may deem desirable or expedient. The Company will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain such office or agency, or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Principal Office of the Trustee.
The Company hereby initially designates the offices of the Trustee located at Corporate Trust Operations NC 1153, Main Building 11th Floor, 230 South Tryon Street, Charlotte, North Carolina 28288 and 40 Broad Street, 5th Floor - Suite 550, New York, New York 10004, as the offices or agencies of the Company, where the Debt Securities of each series may be presented for payment, for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Debt Securities of each series or this Indenture may be served. The Trustee is also designated as repository pursuant to Section 2.06 for the master list of the names and addresses of the Holders of the Debt Securities of each series.
SECTION 4.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.08, a successor trustee, so that there shall at all times be a Trustee with respect to each series of Debt Securities hereunder.
SECTION 4.04. PROVISIONS AS TO PAYING AGENT. (a) If the Company shall appoint a paying agent other than the Trustee with respect to the Debt Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04,
(1) that it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Debt Securities of such series) in trust for the benefit of the Holders of the Debt Securities of such series or of the Trustee, as the case may be, until such sums shall be paid to the Holders or to the Trustee, and will notify the Trustee of the receipt of sums to be so held;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Debt Securities of such series) to make any payment of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series when the same shall be due and payable; and
(3) that at any time during the continuance of any failure by the Company (or by any other obligor on the Debt Securities of such series) specified in the preceding paragraph (2), such paying agent will, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by it.
(b) If the Company shall act as its own paying agent with respect to the Debt Securities of any series, it will, on or before each due date of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of such Debt Securities a sum sufficient to pay such principal, premium, if any, or interest, if any, so becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on the Debt Securities of such series) to make any payment of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding the Company may, at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to Sections 12.03 and 12.04.
(e) Whenever the Company shall have one or more paying agents with respect to the Debt Securities of any series, it will, prior to each due date of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series, deposit with a designated paying agent a sum sufficient to pay the principal, premium, if any, and interest, if any, so becoming due, such sum to be held in trust for the benefit of the persons entitled to such principal, premium, if any, or interest, if any, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of any failure so to act.
SECTION 4.05. STATEMENT AS TO COMPLIANCE. The Company will deliver to the
Trustee on or before January 1 in each year (beginning with the first January 1
which is not less than 60 days following the first date of issuance of any
series of Debt Securities under this Indenture) a certificate complying with
Section 314(a)(4) of the Trust Indenture Act of 1939.
SECTION 4.06. LIMITATION ON LIENS. (a) For the benefit of each series of Debt
Securities issued hereunder (other than as otherwise specified pursuant to
Section 2.02 for any particular series ("Excluded Series")), the Company will
not, nor will it permit any Restricted Subsidiary to, issue or assume any debt
for money borrowed (hereinafter in this Article Four referred to as "Debt"),
secured by a mortgage, security interest,
pledge, lien or other encumbrance (mortgages, security interests, pledges, liens and other encumbrances being hereinafter called "mortgage" or "mortgages") upon any Principal Property of the Company or any Restricted Subsidiary or upon any shares of stock or indebtedness of any Restricted Subsidiary (whether such Principal Property, shares of stock or indebtedness are now owned or hereafter acquired) without in any such case effectively providing concurrently with the issuance or assumption of any such Debt that all Outstanding series of Debt Securities issued hereunder (other than any Excluded Series) (together with, if the Company shall so determine, any other indebtedness of the Company or such Restricted Subsidiary ranking equally with such series of Debt Securities and then existing or thereafter created) shall be secured equally and ratably with such Debt; provided, however, that the foregoing restrictions shall not apply to Debt secured by:
(i) mortgages on property, shares of stock or indebtedness of any corporation existing at the time such corporation becomes a Restricted Subsidiary;
(ii) mortgages on property existing at the time of acquisition of such property by the Company or a Restricted Subsidiary, or mortgages to secure the payment of all or any part of the purchase price of such property upon the acquisition of such property by the Company or a Restricted Subsidiary or to secure any Debt incurred prior to, at the time of, or within 180 days after, the acquisition of such property for the purpose of financing all or any part of the purchase price thereof, or mortgages to secure any Debt incurred for the purpose of financing the cost to the Company or a Restricted Subsidiary of improvements to such acquired property;
(iii) mortgages securing Debt of a Restricted Subsidiary owing to the Company or to another Subsidiary;
(iv) mortgages on property of a corporation existing at the time such corporation is merged into or consolidated with the Company or a Restricted Subsidiary or at the time of sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary;
(v) mortgages on property of the Company or a Restricted Subsidiary in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such mortgages; or
(vi) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any mortgage referred to in the foregoing clauses (i) to (v), inclusively, provided, however, that the principal amount of Debt secured thereby shall not exceed by more than 15% the principal amount of Debt so secured at the time of such extension, renewal or replacement and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the mortgage so extended, renewed or replaced (plus improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section 4.06, the Company and any one or more Restricted Subsidiaries may, without securing any Debt Securities, issue or assume Debt secured by mortgage which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other outstanding Debt of the Company and its Restricted Subsidiaries which (if originally issued or assumed at such time) would otherwise be subject to the foregoing restrictions, but not including Debt permitted to be secured under clauses (i) through (vi) above, does not at the time exceed 20% of the shareholders' equity of the Company and its consolidated subsidiaries, as determined in accordance with generally accepted accounting principles and shown on the audited consolidated balance sheet contained in the latest published annual report to the shareholders of the Company.
(c) The transfer of a Principal Property to a Subsidiary or to any third party shall not be restricted.
ARTICLE FIVE
HOLDER LISTS AND REPORTS BY THE TRUSTEE
SECTION 5.01. HOLDER LISTS. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series, (i) semiannually, not more than 15 days after each July 1 and January 1 and (ii) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Debt Securities of such series as of a date not more than 15 days prior to the time such information is furnished; provided, however, that if and so long as the Trustee shall be designated by the Company to act as repository in accordance with the provisions of Section 2.06, such list shall not be required to be furnished.
SECTION 5.02. DELIVERY OF REPORTS BY THE TRUSTEE. The reports to be transmitted by the Trustee pursuant to the requirements of Section 313 of the Trust Indenture Act of 1939 shall be required to be transmitted on or before the first July 15 which is not less than sixty days following the first date of issuance of any series of Debt Securities under this Indenture, and on or before July 15 in every year thereafter, so long as any Debt Securities are outstanding hereunder, each such report to be dated as of the preceding May 15.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. "Event of Default" whenever used herein with respect to Debt Securities of any series means any one of the following events and such other events as may be established with respect to the Debt Securities of such series as contemplated by Section 2.02 hereof, continued for the period of time, if any, and after the giving of notice, if any, designated in this Indenture or as may be established with respect to such Debt Securities as contemplated by Section 2.02 hereof, as the case may be, unless it is either inapplicable or is specifically deleted or modified in the applicable resolution of the Board of Directors or in the supplemental indenture under which such series of Debt Securities is issued, as the case may be, as contemplated by Section 2.02:
(a) default in the payment of any installment of interest upon any Debt Security of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, or premium, if any, on any Debt Security of such series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration, repayment or otherwise; or
(c) default in the making or satisfaction of any sinking fund payment as and when the same shall become due and payable by the terms of the Debt Securities of such series; or
(d) failure on the part of the Company, duly to observe or perform any
other of the covenants or agreements on the part of the Company in respect
of the Debt Securities of such series contained in this Indenture (other
than a covenant or agreement in respect of the Debt Securities of such
series in default in whose observance or performance is elsewhere in this
Section specifically dealt with) continued for a period of 60 days after
the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given by registered mail to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Debt Securities of
all series at the time Outstanding; provided that such a default or breach
shall not be an Event of Default if it cannot with due diligence be cured
within such 60-day period due to causes beyond the control of the Company,
unless the Company shall fail to proceed promptly to cure the same and
thereafter prosecute the curing of such default or breach with diligence
and continuity. (In the event that such default or breach cannot be cured
within such 60-day period, before the expiration of such 60-
day period the Company shall furnish an Officers' Certificate, upon which the Trustee may conclusively rely notwithstanding such default or breach, to the effect that such default or breach cannot with due diligence be cured within such 60-day period due to causes beyond the control of the Company and that the Company has not failed to proceed promptly to cure the same. Thereafter, from time to time at the request of the Trustee, the Company shall furnish an Officers' Certificate to the effect that the Company is prosecuting the curing of such default or breach with diligence and continuity.); or
(e) failure in the performance or observance of Section 4.06 hereof and continuance of such failure for a period of 120 days after receipt by the Company of a written notice given by the Trustee or receipt by the Company and the Trustee of a written notice given by the Holders of at least 25% in aggregate principal amount of the Debt Securities of all series at the time Outstanding, which written notice shall specify such failure and require it to be remedied; or
(f) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company, under the Federal Bankruptcy Code or any other similar applicable Federal or State law, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of the Company, or of all or substantially all of the property of the Company, or for winding up or liquidation of the affairs of the Company shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee (or other similar official), in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
(h) any other Event of Default provided in the applicable resolution of
the Board of Directors or in the supplemental indenture under which such
series of Debt Securities is issued, as the case may be, as contemplated by
Section 2.02.
If an Event of Default with respect to Debt Securities of any series at the time Outstanding occurs and is continuing, then and in each and every such case, unless the principal of all of the Debt Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than twenty-five percent in aggregate principal amount of the Outstanding Debt Securities of such series or, in the case of an Event of Default specified in clauses (d), (e), (f), or (g) of this Section 6.01, of all series (voting as a class) with respect to which such Event of Default has occurred and is continuing, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal amount (or, if the Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Debt Securities of that series (or, in the case of an Event of Default specified in clauses (d), (e), (f), or (g) of this Section 6.01, of all of the Debt Securities of all series with respect to which such Event of Default has occurred and is continuing) and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Debt Securities of such series contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal amount (or, if the Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of the Debt Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon all of the Debt Securities of such series and the principal of, and premium, if any, on any and all Debt Securities of
such series which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal at the same rate as the rate of interest specified in the Debt Securities of such series, to the date of such payment or deposit) and all amounts payable to the Trustee pursuant to the provisions of Section 7.05 and any and all defaults under this Indenture with respect to such series of Debt Securities, other than the nonpayment of principal of and accrued interest on Debt Securities of such series which shall have become due solely by acceleration, shall have been remedied or cured or waived or provision shall have been made therefor to the satisfaction of the Trustee, then and in every such case the Holders of a majority in aggregate principal amount of the Debt Securities of such series then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect to such series and rescind and annul such declaration and its consequences; but no such waiver or recission or annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee and the Holders shall continue as though no such proceedings had been taken.
SECTION 6.02. PAYMENT OF DEBT SECURITIES ON DEFAULT; SUIT THEREFOR. The Company covenants that (a) in case default shall be made in the payment of any installment of interest upon any Debt Security of any series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall be made in payment of the principal of, or premium, if any, on any Debt Security of any series as and when the same shall become due and payable, whether at maturity of the Debt Securities of that series or upon redemption or by declaration, repayment or otherwise or (c) in case of default in the making or satisfaction of any sinking fund payment when the same becomes due by the terms of the Debt Securities of any series--then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holder of any such Debt Security (or Holders of any series of Debt Securities in the case of clause (c) above) the whole amount that then shall have become due and payable on any such Debt Security (or securities of any such series in the case of clause (c) above) for principal, premium, if any, and interest, if any, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest, if any, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Debt Security of that series (or Debt Securities of any such series in the case of clause (c) above); and, in addition thereto, such further amount as shall be sufficient to cover costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the provisions of Section 7.05.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, or any other obligor upon such Debt Securities, and collect in the manner provided by law out of the property of the Company or any other obligor on such Debt Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Debt Securities of any series, under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or in case a receiver or trustee (or other similar official) shall have been appointed for the property of the Company, or such other obligor upon such Debt Securities, or in the case of any other similar judicial proceedings relative to the Company, or other obligor on the Debt Securities of any series, or to the creditors or property of the Company or such other obligor upon such Debt Securities, the Trustee, irrespective of whether the principal of the Debt Securities of any series 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 pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal (or, if the Debt Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 6.01), premium, if any, and interest, if any, owing and unpaid in respect of the Debt Securities of any series and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders of Debt Securities of any series allowed in such judicial proceedings relative to the Company, or any other obligor on the Debt Securities of any series, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the provisions of Section 7.05 and incurred by it up to the date of such distribution; and any receiver, assignee or trustee (or other similar official) in bankruptcy or reorganization is hereby authorized by each of the Holders 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 costs and expenses of collection and any further amounts payable to the Trustee pursuant to the provisions of Section 7.05 and incurred by it up to the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of Debt Securities any plan of reorganization, arrangement, adjustment or composition affecting any of the Debt Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect to the claim of any Holder of Debt Securities in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under the Debt Securities of any series, may be enforced by the Trustee without the possession of any of the Debt Securities of such series or the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Debt Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Indenture, to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Debt Securities to which such proceedings relate, and it shall not be necessary to make any Holders of such Debt Securities parties to any such proceedings.
SECTION 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys collected by the Trustee pursuant to this Article shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several Debt Securities in respect of which moneys have been collected, 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 pursuant to the provisions of Section 7.05;
Second: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due (at maturity, upon redemption, by declaration, repayment or otherwise) and be unpaid, to the payment of interest, if any, on such Debt Securities, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Debt Securities, such payments to be made ratably to the persons entitled thereto;
Third: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall have become due (at maturity, upon redemption, by declaration, repayment or otherwise), to the payment of the whole amount then owing and unpaid upon such Debt Securities for principal, premium, if any, and interest, if any, with interest on the overdue principal, and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments
of interest, if any, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Debt Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Debt Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal, and premium, if any, over interest, if any, or of interest, if any, over principal, and premium, if any, or of any installment of interest, if any, over any other installment of interest, if any, or of any such Debt Security over any other such Debt Security, ratably to the aggregate of such principal, premium, if any, and accrued and unpaid interest, if any; and
Fourth: To the payment of the remainder, if any, to the Company, to the extent such moneys were provided thereby, their respective successors or assigns, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.04. PROCEEDINGS BY HOLDERS OF DEBT SECURITIES. No Holder of any
Debt Security of any series shall have any right by virtue of or by availing
itself of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee (or other similar official), or
for any other remedy hereunder, unless such Holder previously shall have given
to the Trustee written notice of default with respect to Debt Securities of
such series and of the continuance thereof, as hereinbefore provided, and
unless also the Holders of not less than twenty-five percent in aggregate
principal amount of the Debt Securities of such series then Outstanding or, in
the case of an Event of Default specified in clause (d), (e), (f) or (g) of
Section 6.01, of all series (voting as a class) with respect to which such
Event of Default has occurred and is continuing, shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable security and indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Debt Security with every other taker and Holder and the Trustee, that
no one or more Holders of Debt Securities of such series 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 Holder of
Debt Securities of such series, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Debt Securities of such series.
SECTION 6.05. PROCEEDINGS BY TRUSTEE. In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.06. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies given by this Article Six to the Trustee or to the Holders of Debt Securities of any series shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of such Debt Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any such Debt Securities to exercise any right or power accruing upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Debt Securities of any series may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Debt Securities of such series.
SECTION 6.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY HOLDERS OF
DEBT SECURITIES. The Holders of a majority (voting as one class) in aggregate
principal amount of the Debt Securities of each series affected at the time
Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of such series; provided, however, that (subject to the
requirements of Section 315 of the Trust Indenture Act of 1939) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by a Responsible
Officer shall determine that the action or proceeding so directed could involve
the Trustee in personal liability or expense materially in excess of any
indemnity offered pursuant to Section 7.05 hereof. The Holders of a majority in
aggregate principal amount of the Debt Securities of such series at the time
Outstanding may on behalf of the Holders of all of the Debt Securities of such
series waive any past default or Event of Default with respect to such series
and its consequences except a default in the payment of interest, if any, on,
or the principal of or premium, if any, on any Debt Security of such series, or
in the payment of any sinking fund installment with respect to Debt Securities
of such series. Upon any such waiver the Company, the Trustee and the Holders
of the Debt Securities of that series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 6.07, said default or Event of
Default shall for all purposes of the Debt Securities of such series and this
Indenture be deemed to have been cured and to be not continuing.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. RELIANCE ON DOCUMENTS AND OPINIONS. Subject to the requirements of Section 315 of the Trust Indenture Act of 1939:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered to be taken by it hereunder in good faith and in accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of 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 therein or thereby;
(e) the Trustee shall not be liable for any action taken, omitted or suffered 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;
(f) the Trustee shall not be bound to make any inquiry or investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, or other paper or document unless requested in writing to do so by the Holders of a majority in aggregate principal amount of the Debt Securities of any series affected then outstanding; provided, however, that if the payment within a reasonable time to the Trustee of the costs and expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security conferred upon it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding; and the reasonable expense of such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
SECTION 7.02. RESPONSIBILITY FOR RECITALS. The recitals contained herein and in the Debt Securities (except in the certificates of authentication of the Trustee and the Authenticating Agent) shall be taken as the statements of the Company, and the Trustee and the Authenticating Agent assume no responsibility for the correctness of the same. The Trustee and the Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or the Debt Securities, provided that neither the Trustee nor the Authenticating Agent shall be relieved of its duty to authenticate Debt Securities only as authorized by this Indenture. The Trustee and the Authenticating Agent shall not be accountable for the use or application by the Company of any of the Debt Securities or of the proceeds thereof.
SECTION 7.03. OWNERSHIP OF DEBT SECURITIES. The Trustee or any Authenticating Agent and any agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Debt Securities with the same rights it would have if it were not Trustee, Authenticating Agent or such agent.
SECTION 7.04. MONEYS TO BE HELD IN TRUST. Subject to the provisions of Sections 12.03 and 12.04 hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon Company Order.
SECTION 7.05. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants and agrees to pay the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents or counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may be attributable to its negligence or bad faith. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust and its duties hereunder, including the costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section 7.05 to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify the Trustee shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Debt Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Debt Securities.
SECTION 7.06. OFFICERS' CERTIFICATE AS EVIDENCE. Subject to the requirements of Section 315 of the Trust Indenture Act of 1939, whenever in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking, omitting or suffering any action to be taken hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
omitted or suffered by it under the provisions of this Indenture upon the faith
thereof.
SECTION 7.07. ELIGIBILITY OF TRUSTEE. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the
United States or any State, which (a) is authorized under such laws to exercise
corporate trust powers, (b) is subject to supervision or examination by Federal
or State authority, (c) shall have at all times a combined capital and surplus
of not less than ten million dollars and (d) is eligible under the provisions
of the Trust Indenture Act of 1939. If such corporation publishes reports of
condition at least annually, pursuant to law, or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 7.07, the combined capital and surplus of such corporation at any time
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 7.07,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.08.
SECTION 7.08. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to any one or more or all series of Debt Securities by giving written notice of resignation to the Company and by mailing notice thereof to the Holders of the applicable series of Debt Securities at their addresses as they shall appear on the registry books of the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument, in duplicate, executed under authority of the Board of Directors of the Company, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 60 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, or any Holder who has been a bona fide Holder of a Debt Security or Debt Securities of the applicable series for at least six months may, subject to the requirements of Section 315(e) of the Trust Indenture Act of 1939, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.07 with respect to any series of Debt Securities and shall fail to resign after written request therefor by the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting with respect to any series of Debt Securities, 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, the Company may remove the Trustee with respect to such series and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed under authority of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the requirements of Section 315(e) of the Trust Indenture Act of 1939, any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee with respect to such series.
(c) The Holders of 66 2/3% in aggregate principal amount of the Debt Securities of one or more series (each series voting as a class) or all series at the time Outstanding may at any time remove the Trustee with respect to the applicable series or all series, as the case may be, and appoint with respect to the applicable series or all series, as the case may be, a successor trustee by written notice of such action to the Company, the Trustee and the successor trustee which shall be deemed appointed as successor trustee with respect to the applicable series of Debt Securities or all series, as the case may be, unless within ten days after such nomination the Company objects thereto, in which case the Trustee so removed or any Holder of a Debt Security of the applicable series (in the case of any such objection to a nomination of a successor trustee with respect to such series) or any Holder (in the case of any such objection to a nomination of a successor trustee with respect to all series), upon the terms, and conditions and otherwise as in subsection (a) of this Section 7.08 provided, may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to such series of Debt Securities or all series, as the case may be.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 7.08 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.09.
SECTION 7.09. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 7.08 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to any or all applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company, or of the successor trustee, the trustee
ceasing to act shall, upon payment (or due provision therefor) of any amounts
then due it pursuant to the provisions of Section 7.05, execute and deliver an
instrument transferring to such successor trustee all the rights and powers
with respect to such series of the trustee so ceasing to act. Upon request of
any such successor trustee, the Company shall execute any and all instruments
in writing in order more fully and certainly to vest in and confirm to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.05.
In case of the appointment hereunder of a successor trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the predecessor trustee and each successor trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Debt Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and 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.
No successor trustee with respect to a series of Debt Securities shall accept appointment as provided in this Section 7.09 unless at the time of such acceptance such successor trustee shall, with respect to such series, be qualified under the requirements of the Trust Indenture Act of 1939 and eligible under the provisions of Section 7.07.
Upon acceptance of appointment by a successor trustee with respect to any series as provided in Section 7.09, the Company shall mail notice of the succession of such trustee hereunder to the Holders of Debt Securities of such series at their addresses as they shall appear on the registry books of the Company. If the Company fails to mail such notice within ten days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company.
SECTION 7.10. SUCCESSION BY MERGER. 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 the corporate trust business of the Trustee, shall be the successor to the Trustee hereunder, provided such corporation shall be qualified under the requirements of the Trust Indenture Act of 1939 and eligible under the provisions of Section 7.07, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trust created by this Indenture with respect to one or more series of Debt Securities, any of such Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor trustee, and deliver such Debt Security so authenticated; and in case at that time any of such Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt Securities either in the name of such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion or consolidation, the name of any predecessor hereunder; and in all such cases such certificate shall have the full force which it is anywhere in such Debt Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.11. AUTHENTICATING AGENTS. There may be one or more Authenticating Agents appointed by the Trustee, with the consent of the Company, having power to act on behalf of the Trustee and subject to its direction in the authentication and delivery of Debt Securities of one or more series issued upon exchange or transfer thereof as fully to all intents and purposes as though any such Authenticating Agent had been expressly authorized to authenticate and deliver such Debt Securities. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State thereof authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of at least $5,000,000 and being subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 7.11 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 herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor corporation is otherwise eligible under this
Section 7.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination 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 any Authenticating Agent shall cease to be eligible under this Section 7.11, the Trustee may, and upon the request of the Company shall, promptly appoint a successor Authenticating Agent eligible under this Section 7.11, and shall give written notice of such appointment to the Company and to the Holders of Debt Securities at their addresses as they shall appear on the registry books of the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein.
The Trustee agrees to pay to any Authenticating Agent from time to time reasonable compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments, subject to Section 7.05.
Any Authenticating Agent shall have no responsibility or liability for any action taken by it as such in accordance with the directions of the Trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. ACTION BY HOLDERS. Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the
Debt Securities of any or all series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced
(a) by any instrument or any number of instruments of similar tenor executed by
such Holders in person or by agent or proxy appointed in writing, or (b) by the
record of such Holders of Debt Securities voting in favor thereof at any
meeting of such Holders duly called and held in accordance with the provisions
of Article Nine, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Holders.
SECTION 8.02. PROOF OF EXECUTION BY HOLDERS. Subject to the requirements of
Section 315 of the Trust Indenture Act of 1939 and Sections 7.01 and 9.05,
proof of the execution of any instrument by a Holder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities shall be proved
by the registry books of the Company or by a certificate of the person
designated by the Company to act as repository in accordance with the
provisions of Section 2.06.
The record of any Holders' meeting shall be proved in the manner provided in
Section 9.06.
SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the Trustee and any agent of the Company or of the Trustee may deem the person in whose name a Debt Security shall be registered upon the books of the Company to be, and may treat him as, the absolute owner of such Debt Security (whether or not such Debt Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of, premium, if any, and interest, if any, on such Debt Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. All such payments so made to any Holder for the time being, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.
SECTION 8.04. COMPANY-OWNED DEBT SECURITIES DISREGARDED. In determining whether the Holders of the requisite aggregate principal amount of Debt Securities have concurred in any demand, request, notice, direction, consent or waiver under this Indenture, Debt Securities which are owned by the Company or any other obligor on the Debt Securities with respect to which such determination is being made, or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Debt Securities, with respect to which such determination is being made, shall be disregarded and deemed not to be Outstanding for the purposes of any such determination; provided, that for the purposes of determining whether the Trustee shall be protected in relying on any such demand, request, notice, direction, consent or waiver only Debt Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 8.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Debt Security which is shown by
the evidence to be included in the Debt Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future Holders of such Debt Security, and any Debt Security issued upon the registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon such Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.01. PURPOSES OF MEETINGS. A meeting of Holders of Debt Securities of any or all series may be called at any time and from time to time pursuant to the provisions of this Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Debt Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call a meeting of Holders of Debt Securities of any or all series to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders of Debt Securities of any or all 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 mailed to Holders of Debt Securities of each series affected at their addresses as they shall appear on the registry books of the Company. Such notice shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETINGS BY THE COMPANY OR HOLDERS. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the Holders of at least twenty-five percent in aggregate principal amount of the Debt Securities then Outstanding of any series that may be affected by the action proposed to be taken at the meeting, shall have requested the Trustee to call a meeting of the Holders of Debt Securities of all series that may be so affected, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders, in the amount specified above, may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.
SECTION 9.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any meeting of Holders a person shall (a) be a Holder of one or more Debt Securities with respect to which such meeting is being held or (b) be a person appointed by an instrument in writing as proxy by a Holder of one or more such Debt Securities. The only persons who shall be entitled to be present or to speak at any meeting of Holders shall be the persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Debt Securities 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 think fit.
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 as provided in Section 9.03, in which case the Company or the Holders 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 majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each Holder of Debt Securities with respect to which such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount (or in the case of Original Issue Discount Securities or Debt Securities of such series denominated in a currency other than Dollars or are denominated in units or composites of two or more currencies, such principal amount to be determined as of the record date as provided in the definition of "Outstanding.") of such Debt Securities held or represented by each Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any such Debt 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 other than by virtue of such Debt Securities held by him or instruments in writing as aforesaid duly designating him as the person to vote on behalf of other such Holders. At any meeting of Holders, the presence of persons holding or representing Debt Securities in an aggregate principal amount sufficient to take action on any business for the transaction of which such meeting was called shall constitute a quorum.
Any meeting of Holders of Debt Securities with respect to which a meeting was duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
SECTION 9.06. VOTING. The vote upon any resolution submitted to any meeting of Holders of Debt Securities with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders of Debt Securities or of their representatives by proxy and the principal amount and number or numbers of such Debt Securities 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 in duplicate of the proceedings of each meeting of Holders 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 mailed as provided in Section 9.02. The record shall show the principal amount of the Debt Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any records so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 9.07. NO DELAY OF RIGHTS BY MEETING. Nothing in this Article Nine shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders of any or all series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of any or all such series under any of the provisions of this Indenture or of the Debt Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. The Company when authorized by resolution of the Board of Directors and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company, as the case may be pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or any
series of Debt Securities (and if such covenants are to be for the benefit
of less than all series of Debt Securities, stating that such covenants are
expressly being included for the benefit of such series) as the Board of
Directors of the Company shall consider to be for the protection of the
Holders of such Debt Securities or as may be required by Section 4.03 or
Section 11.02, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as herein
set forth; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Debt Securities in bearer or coupon form (including securities registrable as to principal only) and to provide for exchangeability of such Debt Securities with the Debt Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose;
(d) to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.02;
(e) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of any Debt Securities;
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Debt Securities of one or more
series or 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 7.09; and
(g) to add appropriate provisions (including the appointment of a co- trustee) to evidence the securing of any series of Debt Securities pursuant to Section 4.06.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the consent (evidenced as provided in Sections 8.01 and 8.02) of the Holders of not less than 66 2/3% in aggregate principal amount of
the Debt Securities of each series issued under the Indenture (each series voting as a class) affected by such supplemental indenture at the time Outstanding, the Company, when authorized by a resolution of the Board of Directors and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debt Securities of each such series; provided, however, that, without the consent of the Holders of all Debt Securities affected then Outstanding, no such supplemental indenture shall (i) extend the fixed maturity of any Debt Security, or reduce the rate or extend the time of payment of interest, if any, thereon, or reduce the principal amount or premium, if any, thereon, or make the principal thereof or premium, if any, or interest, if any, thereon payable in any coin or currency other than that provided in any Debt Security, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 6.01 or adversely affect the right of repayment, if any, at the option of the Holder or (ii) reduce the aforesaid percentage of Debt Securities of any series, the Holders of which are required to consent to any such supplemental indenture. 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 Debt Securities, or which modifies the rights of the Holders of Debt 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 Debt Securities of any other series.
Upon the request of the Company, accompanied by a copy of the resolutions of the Board of Directors authorizing the execution and delivery of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section 10.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act of 1939, as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Debt Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 10.04. NOTATION ON DEBT SECURITIES. Debt Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Ten may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, and such Debt Securities may be authenticated by the Trustee and delivered in exchange for the Debt Securities of such series then outstanding.
SECTION 10.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TRUSTEE. The Trustee, subject to the requirements of Section 315 of the Trust Indenture Act of 1939 and Section 7.01, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. COMPANY MAY NOT CONSOLIDATE EXCEPT UNDER CERTAIN CONDITIONS. The Company covenants that it will not merge or consolidate with any other Person or sell, convey, transfer or otherwise dispose of all or substantially all of its assets to any Person, unless (i) the Company shall be the continuing corporation, or the successor corporation or Person (if other than the Company) shall, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such corporation or Person, expressly assume the due and punctual payment of the principal of and, premium, if any, and interest, if any, on all the Debt Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company, and (ii) the Company or such successor corporation or Person, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance, transfer or other disposition, be in default in the performance of any such covenant or condition. In the event of any such sale, conveyance (other than by way of lease), transfer or other disposition, the predecessor company may be dissolved, wound up and liquidated at any time thereafter.
SECTION 11.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case of any such consolidation, merger, sale, conveyance (other than by way of lease), transfer or other disposition, and upon any such assumption by the successor corporation or Person, such successor corporation or Person shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company and the Company shall be relieved of any further obligation under this Indenture and under the Debt Securities. Such successor corporation or Person thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Debt Securities which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation or Person, instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate and shall deliver any Debt Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Debt Securities, which such successor corporation or Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Debt Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Debt Securities had been issued at the date of the execution hereof.
SECTION 11.03. DOCUMENTS TO BE GIVEN TRUSTEE. The Trustee, subject to the requirements of Section 315 of the Trust Indenture Act of 1939 and Section 7.01, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE OR CERTAIN OBLIGATIONS
SECTION 12.01. DISCHARGE OF INDENTURE. When (a) the Company shall deliver to the Trustee for cancellation all Debt Securities of a series theretofore authenticated (other than any Debt Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.07) and not theretofore cancelled; or (b) all Debt Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee, in trust, funds sufficient to pay at maturity or upon redemption all of the Debt Securities of such series (other than any Debt Securities of such series which shall have been mutilated, destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.07) not
theretofore cancelled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest, if any, due or to become due to
such date of maturity or redemption date, as the case may be, but excluding,
however, the amount of any money for the payment of the principal of and
premium, if any, or interest, if any, on the Debt Securities of such series (1)
theretofore deposited with the Trustee with respect to Debt Securities of such
series and repaid by the Trustee to the Company in accordance with the
provisions of Section 12.04 or (2) paid with respect to Debt Securities of such
series to any State or to the District of Columbia pursuant to its unclaimed
property or similar laws, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect with respect to the Debt
Securities of such series except as to (A) the rights of Holders of Debt
Securities of such series to receive solely from funds deposited by the Company
with the Trustee, in trust as described above in this Section 12.01, payment of
the principal of, premium, if any, and the interest, if any, on such Debt
Securities when such payments are due; (B) the Company's obligations with
respect to such Debt Securities under Sections 2.06, 2.07, 4.02 and 12.03; and
(C) the rights, powers, duties and immunities of the Trustee hereunder, and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with and at the cost and expense of the Company, shall execute
such instruments as may be requested by the Company acknowledging satisfaction
of and discharging this Indenture with respect to such series of Debt
Securities.
SECTION 12.02. DISCHARGE OF OBLIGATIONS. At the Company's option, either (a) the Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to any series of Debt Securities on the ninety-first day after the applicable conditions set forth below have been satisfied or (b) the Company shall cease to be under any obligation to comply with any term, provision or condition set forth in Sections 4.06, 11.01 and 11.02 with respect to any series of Debt Securities and any other covenants provided in a resolution delivered to the Trustee pursuant to Section 2.02 hereof or an indenture supplemental hereto with respect to such series of Debt Securities at any time after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Debt Securities of such series (A) money in an amount, or (B) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one business day before the due date of any payment, money in an amount, or (C) a combination of (A) and (B), sufficient, in the opinion (with respect to (A) and (B)) of a nationally recognized firm of independent public accountants selected by the Company expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments) of, premium, if any, and interest, if any, on, the Outstanding Debt Securities of such series on the dates such installments of principal, premium, if any, and interest, if any, are due (taking into account any redemption pursuant to optional sinking fund payments notice of which redemption is provided to the Trustee at the time of the deposit referred to in this paragraph (1));
(2) if the Debt Securities of such series are then listed on the New York Stock Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Company's exercise of its option under this paragraph would not cause such Debt Securities to be delisted;
(3) no Event of Default with respect to the Debt Securities of such series under Sections 6.01(a), 6.01(b), 6.01(c), 6.01(e) or 6.01(g) of this Indenture shall have occurred and be continuing on the date of such deposit and the Company shall have furnished an Officer's Certificate to such effect;
(4) the Company shall have delivered to the Trustee (a) an Opinion of Counsel or (b) a ruling from, or published by, the Internal Revenue Service, whichever of (a) or (b) the Company shall determine, to the effect that Holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its option under this Section 12.02
and will be subject to Federal income tax on the same amount and in the same manner and at the same time as would have been the case if such option had not been exercised.
"Discharged" means, for purposes of this Section 12.02, that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by, and obligations under, the Debt Securities of such series and to have
satisfied all the obligations under this Indenture relating to the Debt
Securities of such series (and the Trustee, at the expense of the Company,
shall execute such instruments as may be requested by the Company acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series
to receive, solely from the trust fund described above, payment of the
principal of, premium, if any, and the interest, if any, on such Debt
Securities when such payments are due; (B) the Company's obligations with
respect to such Debt Securities under Sections 2.06, 2.07, 4.02 and 12.03; and
(C) the rights, powers, duties and immunities of the Trustee hereunder.
SECTION 12.03. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys and U.S. Government Obligations deposited with the Trustee pursuant to the provisions of Section 12.01 or 12.02 and the principal and interest in respect of U.S. Government Obligations shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company if acting as its own paying agent), to the Holders of the particular Debt Securities for payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any.
SECTION 12.04. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and discharge of this Indenture all moneys then held by any paying agent of the Debt Securities (other than the Trustee) shall, upon demand of the Company, be repaid to the Company (to the extent such money shall have been deposited by the Company) or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys.
SECTION 12.05. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or paid to the Trustee or a paying agent by the Company for payment of the principal of, premium, if any, or interest, if any, on Debt Securities of any series and not applied but remaining unclaimed by the Holders of Debt Securities of that series for two years after the date upon which the principal of, premium, if any, or interest, if any, on such Debt Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee or such paying agent on written demand and thereupon all liability of the Trustee or such paying agent with respect to such money shall cease; and the Holder of any such Debt Securities shall thereafter look only to the Company for any payment which such Holder may be entitled to collect.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS. No recourse for the payment of the principal of, premium, if any, or interest, if any, on any Debt Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any Debt Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Debt Securities.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the covenants, stipulations, promises and agreements by the Company in this Indenture contained shall bind their respective successors and assigns whether so expressed or not.
SECTION 14.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company.
SECTION 14.03. ADDRESSES FOR NOTICES. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Debt Securities on the Company may be given or served by being deposited postage prepaid by first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to, McDonald's Corporation, Attention: Treasurer, One McDonald's Plaza, Oak Brook, IL 60521, with a copy to the Controller. Any notice, direction, request or demand by any Holder of Debt Securities to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Principal Office of the Trustee.
SECTION 14.04. GOVERNING LAW. THIS INDENTURE AND EACH DEBT SECURITY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
SECTION 14.05. LEGAL HOLIDAYS. In any case where the date of maturity of interest, if any, on or principal of, or premium, if any, on the Debt Securities or the date fixed for redemption or repayment of any Debt Security will be in the City of New York, New York, a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or executive order to close or remain closed, then payment of such interest, if any, on or principal of or premium, if any, on the Debt Securities need not be made on such date but may be made on the next succeeding day not in such city, a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or executive order to close or remain closed, with the same force and effect as if made on the date of maturity or a date fixed for redemption or repayment, and no interest shall accrue for the period from and after such date.
SECTION 14.06. TABLE OF CONTENTS AND HEADINGS. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 14.07. EXECUTION IN COUNTERPARTS. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
SECTION 14.08. SEPARABILITY. In case any provision in this Indenture or in the Debt Securities 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 14.09. BENEFITS. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give to any person, other than the parties hereto and their successors hereunder, and the Holders of the Debt Securities, any benefit or any legal or equitable right, remedy or claim under this 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 , 1996.
MCDONALD'S CORPORATION
By __________________________________
Title:
[Corporate Seal]
Attest:
By __________________________________
Title:
FIRST UNION NATIONAL BANK
By __________________________________
Title:
[Corporate Seal]
Attest:
By __________________________________
Title:
State of Illinois ^^ss: County of DuPage ^^ On this day of , 1996, before me personally came , to |
me personally known, who, being by me duly sworn, did depose and say that he is of McDonald's Corporation, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
Commonwealth of Pennsylvania ^^ ss:
County of ^^
On this day of , 1996, before me personally came , to me personally known, who, being by me duly sworn, did depose and say that he is of First Union National Bank, one of the entities described in and which executed the above instrument; that he knows the corporate seal of said national banking association; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said national banking association, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
EXHIBIT A
[FORM OF NOTE]
MCDONALD'S CORPORATION
[ADD APPLICABLE LEGENDS]
NOTE DUE
NO.............. [SPECIFY AMOUNT AND CURRENCY]
McDONALD'S CORPORATION, a corporation organized and existing under the laws
|
of the State of Delaware (hereinafter called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to the Person in whose name this Note is registered or registered assigns, the principal sum of [SPECIFY AMOUNT AND CURRENCY] on and to pay interest thereon from or from the most recent interest payment date to which interest has been paid or duly provided for, [semi-annually] on [and ], in each year, [at the rate of % per annum] or [a rate determined by (specify method)] until the principal hereof is paid or such payment is duly provided for. The interest so payable and punctually paid or duly provided for, on any interest payment date will, as provided in said Indenture, be paid to the Person in whose name this Note is registered at the close of business on the record date for such interest, which shall be the day, whether or not a business day, of the calendar month next preceding an interest payment date. Payment of the principal of (and premium, if any, on) and interest on this Note will be made at the designated office or agency of the Company maintained for such purpose in , in [SPECIFY CURRENCY] or, at the option of the Company interest so payable may be paid by check to the order of said Holder mailed to his address appearing on the Debt Security register. Any interest not so punctually paid or duly provided for shall be payable as provided in the Indenture.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth in this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof (or by an Authenticating Agent, as provided in the Indenture) by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, McDonald's Corporation has caused this Instrument to be signed in its corporate name by its Chairman of the Board or its President or one of its Vice Presidents manually or in facsimile and a facsimile of its corporate seal to be imprinted hereon and attested by the manual or facsimile signature of its Secretary or one of its Assistant Secretaries.
Dated: McDonald's Corporation
By __________________________________
Attest:
- -------------------------------------
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CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein provided for in the within-mentioned Indenture.
By __________________________________ Authorized Representative
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness of the Company (herein called "Debt Securities") of a series hereinafter specified, all issued and to be issued under an Indenture dated as of , 1996 (herein called the "Indenture"), between the Company and First Union National Bank, as Trustee (herein called the "Trustee", which term includes any successor Trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Debt Securities and the terms upon which the Debt Securities are, and are to be, authenticated and delivered. The Debt Securities may be issued in one or more series, which different series may be issued in various currencies, various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Note is one of a series of the Company designated as its Notes due (herein called the "Notes"), limited in aggregate principal amount to [SPECIFY AMOUNT AND CURRENCY.]
[The Notes may be redeemed, at the option of the Company, as a whole or from time to time in part, on any date on or after and prior to maturity, upon mailing a notice of such redemption not less than 30 nor more than 60 days prior to the date fixed for redemption to the Holders of Notes to be redeemed, as provided in the Indenture, at % of the principal amount together with accrued interest to the date fixed for redemption.]
[In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
If an Event of Default shall occur with respect to the Notes, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than 66 2/3% in aggregate principal amount of each series of the Debt Securities at the time outstanding (as defined in the Indenture) to be affected (each series voting as a class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Debt Securities of all such series; provided, however, that no such supplemental indenture shall, among other things, (i) extend the fixed maturity of any Debt Security, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount or premium if any, thereon, or make the principal thereof, or premium, if any, or interest, if any, thereon payable in any coin or currency other than that hereinabove provided, without the consent of the Holder of each Debt Security so affected or reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon acceleration of maturity thereof, or (ii) reduce the aforesaid percentage of Debt Securities the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Debt Security so affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding, as defined in the Indenture, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note or upon any Note issued upon the transfer hereof or in exchange therefor or in lieu hereof.
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 interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Debt Security register of the Company, upon surrender of this Note for transfer at the office or agency as may be designated or maintained by the Company for such purpose in , duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee, duly executed by the 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, will be issued to the designated transferee or transferees.
The Notes are issuable in denominations of [SPECIFY AMOUNT AND CURRENCY] and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Note is exchangeable for a like aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering the same.
No service charge will be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest or premium, if any, on this Note or for any claim based hereon or otherwise in any manner in respect hereof, or in respect of the Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
EXHIBIT 4(B)
MCDONALD'S CORPORATION
AND
FIRST UNION NATIONAL BANK
TRUSTEE
INDENTURE
DATED AS OF ________ ___ , 1996
SUBORDINATED DEBT SECURITIES
REFERENCE SHEET*
Reference is made to the following provisions of the Trust Indenture Act of 1939, as amended, which establish certain duties and responsibilities of the Company and the Trustee which may not be set forth in this Indenture:
SECTION SUBJECT
------- -------------------------------
310(b) Disqualification of the Trustee
for conflicting interest
311 Preferential collection of
claims of the Trustee as
creditor of the Company
312(a) Periodic filing of information
by the Company with the
Trustee
312(b) Access of Holders to
information
313(a) Annual report of the Trustee to
Holders
313(b) Additional reports of the
Trustee to Holders
313(d) Filing of reports with stock
exchanges and Commission
314(a) Reports by the Company,
including annual compliance
certificate
314(c) Evidence of compliance with
conditions precedent
315(a) Duties of the Trustee prior to
default
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SECTION SUBJECT ------- ------------------------------------------------------------------------ 315(b) Notice of default from the Trustee to Holders 315(c) Duties of the Trustee in case of default 315(d) Provisions relating to responsibility of the Trustee 315(e) Assessment of costs against litigating Holders in certain circumstances 316(a) Directions and waivers by Holders in certain circumstances 316(b) Prohibition of impairment of right of Holders to payment 316(c) Right of the Company to set record date for certain purposes 317(a) Special powers of the Trustee 317(b) Duties of paying agents 318(a) Provisions of Trust Indenture Act of 1939 to control in case of conflict |
TABLE OF CONTENTS*
SECTION PAGE
------- ----
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions............. 1
Authenticating Agent.... 1
Board of Directors...... 1
Company................. 1
Company Request......... 1
Debt Security........... 1
Designated Officers..... 2
Dollars................. 2
Event of Default........ 2
Holder.................. 2
Indenture............... 2
Interest................ 2
Officers' Certificate... 2
Opinion of Counsel...... 2
Original Issue Discount
Security................ 2
Outstanding............. 2
Person.................. 3
Place of Payment........ 3
Principal Office of the
Trustee................. 3
Responsible Officer..... 3
Senior Indebtedness..... 3
Subsidiary.............. 3
Trustee................. 3
Trust Indenture Act of
1939.................... 3
U.S. Government
Obligations............. 3
Yield to Maturity....... 4
ARTICLE TWO
DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
Section 2.01. Forms................... 4
Section 2.02. Amount Unlimited;
Issuable in Series...... 5
Section 2.03. Authentication.......... 6
Section 2.04. Date and Denomination of
Debt Securities......... 7
Section 2.05. Execution of Debt
Securities.............. 7
Section 2.06. Exchange and
Registration of Transfer
of Debt Securities...... 7
Section 2.07. Mutilated, Destroyed,
Lost or Stolen Debt
Securities.............. 8
Section 2.08. Temporary Debt
Securities.............. 9
Section 2.09. Cancellation of Debt
Securities Paid ........ 9
Section 2.10. Computation of Interest. 9
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SECTION PAGE
------- ----
ARTICLE THREE
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
Section 3.01. Applicability of Article................................. 10
Section 3.02. Notice of Redemption; Selection of Debt Securities....... 10
Section 3.03. Payment of Debt Securities Called for Redemption......... 10
Section 3.04. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities............................................... 11
Section 3.05. Redemption of Debt Securities for Sinking Fund........... 11
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest............... 13
Section 4.02. Offices for Notices and Payments ........................ 13
Section 4.03. Appointments to Fill Vacancies in Trustee's Office....... 13
Section 4.04. Provisions as to Paying Agent............................ 13
Section 4.05. Statement as to Compliance............................... 14
ARTICLE FIVE
HOLDER LISTS
AND REPORTS BY THE TRUSTEE
Section 5.01. Holder Lists............................................. 14
Section 5.02. Delivery of Reports by the Trustee....................... 14
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default........................................ 15
Section 6.02. Payment of Debt Securities on Default; Suit Therefor..... 16
Section 6.03. Application of Moneys Collected by Trustee............... 18
Section 6.04. Proceedings by Holders of Debt Securities................ 18
Section 6.05. Proceedings by Trustee................................... 19
Section 6.06. Remedies Cumulative and Continuing....................... 19
Section 6.07. Direction of Proceedings and Waiver of Defaults by
Holders of Debt Securities............................... 19
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ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Reliance on Documents and Opinions........................ 20
Section 7.02. Responsibility for Recitals............................... 20
Section 7.03. Ownership of Debt Securities.............................. 20
Section 7.04. Moneys to be Held in Trust................................ 21
Section 7.05. Compensation and Expenses of Trustee...................... 21
Section 7.06. Officers' Certificate as Evidence......................... 21
Section 7.07. Eligibility of Trustee.................................... 21
Section 7.08. Resignation or Removal of Trustee......................... 21
Section 7.09. Acceptance by Successor Trustee........................... 22
Section 7.10. Succession by Merger...................................... 23
Section 7.11. Authenticating Agents..................................... 23
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Action by Holders......................................... 24
Section 8.02. Proof of Execution by Holders............................. 24
Section 8.03. Who Are Deemed Absolute Owners............................ 25
Section 8.04. Company-Owned Debt Securities Disregarded................. 25
Section 8.05. Revocation of Consents; Future Holders Bound.............. 25
ARTICLE NINE
HOLDERS' MEETINGS
Section 9.01. Purposes of Meetings...................................... 25
Section 9.02. Call of Meetings by Trustee............................... 26
Section 9.03. Call of Meetings by the Company or Holders................ 26
Section 9.04. Qualifications for Voting................................. 26
Section 9.05. Regulations............................................... 26
Section 9.06. Voting.................................................... 27
Section 9.07. No Delay of Rights by Meeting............................. 27
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ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without Consent of Holders....... 27
Section 10.02. Supplemental Indentures with Consent of Holders.......... 28
Section 10.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.................................. 29
Section 10.04. Notation on Debt Securities.............................. 29
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee........................................ 29
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company May Not Consolidate Except Under Certain
Conditions.............................................. 29
Section 11.02. Successor Corporation to be Substituted.................. 29
Section 11.03. Documents to be Given Trustee............................ 30
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE OR CERTAIN OBLIGATIONS
Section 12.01. Discharge of Indenture................................... 30
Section 12.02. Discharge of Obligations................................. 30
Section 12.03. Deposited Moneys to be Held in Trust by Trustee.......... 31
Section 12.04. Paying Agent to Repay Moneys Held........................ 31
Section 12.05. Return of Unclaimed Moneys............................... 31
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Indenture and Debt Securities Solely Corporate
Obligations............................................. 32
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ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Provisions Binding on Company's Successors............... 32
Section 14.02. Official Acts by Successor Corporation................... 32
Section 14.03. Addresses for Notices.................................... 32
Section 14.04. Governing Law............................................ 32
Section 14.05. Legal Holidays........................................... 32
Section 14.06. Table of Contents and Headings........................... 33
Section 14.07. Execution in Counterparts................................ 33
Section 14.08. Separability............................................. 33
Section 14.09. Benefits................................................. 33
ARTICLE FIFTEEN
SUBORDINATION
Section 15.01. Subordination in Right of Payment to All Senior
Indebtedness............................................ 33
Section 15.02. Trustee May Rely on Certificate of Liquidating Agent..... 34
Section 15.03. Company Obligation to Pay Unconditional.................. 34
Section 15.04. Notice to Trustee of Effectuation of Subordination....... 34
Section 15.05. Senior Indebtedness Held by Trustee...................... 35
EXHIBIT A Form of Subordinated Note
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This Indenture, dated as of , 1996 between McDonald's Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), and First Union National Bank, a national banking association (the "Trustee").
WITNESSETH:
Whereas, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated bonds, debentures, notes and other evidences of indebtedness to be issued in one or more series as in this Indenture provided;
Whereas, all acts and things necessary to make this Indenture, when duly executed and delivered by the parties hereto, a valid agreement of the Company according to its terms, have been done and performed, and the execution and delivery by the Company of this Indenture have in all respects been duly authorized;
Now, therefore:
In order to declare the terms and conditions upon which the Debt Securities are authenticated, issued and received, and in consideration of the premises and the purchase of the Debt Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Debt Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939, as amended, or which are by reference therein defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture as originally executed. 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.
"Authenticating Agent" means any agent or agents of the Trustee which at the time shall be appointed and acting pursuant to Section 7.11.
"Board of Directors" means the Board of Directors of the Company, or any duly authorized committee of that Board including, without limitation, the Executive Committee of the Board of Directors.
"Company" means McDonald's Corporation, a Delaware corporation, until any successor corporation shall have become such pursuant to the provisions of Article Eleven, and thereafter "Company" shall mean such successor, except as otherwise provided in Article Eleven.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board, Vice
Chairman of the Board, President or any Vice President, and by its Chief
Financial Officer, Treasurer, an Assistant Treasurer, Controller, an Assistant
Controller, Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Debt Security" or "Debt Securities" means any debt security or debt
securities of the Company, as the case may be, issued, authenticated and
delivered under this Indenture.
"Designated Officers" means such officers of the Company as are authorized pursuant to a resolution of the Board of Directors to issue Debt Securities, to the extent authorized by such resolution and applicable law.
"Dollars" and "$" mean the lawful currency of the United States of America.
"Event of Default" has the meaning specified in Section 6.01.
"Holder", or other similar terms, means any person in whose name at the time a particular Debt Security is registered on the books of the Company kept for that purpose in accordance with the terms hereof.
"Indenture" means this instrument as originally executed or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of particular series of Debt Securities established as contemplated hereunder.
"interest" when used with respect to a non-interest bearing Debt Security, means interest payable after the principal thereof has become due and payable whether at maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund, or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or any Vice President and by the Chief Financial Officer, Controller, an Assistant Controller, Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company. Each such certificate shall comply with Section 314(c) of the Trust Indenture Act of 1939, to the extent applicable.
"Opinion of Counsel" means an opinion in writing signed by legal counsel, who
may be an employee of or of counsel to the Company or the Trustee, or may be
other counsel satisfactory to the Trustee. Each such opinion shall comply with
Section 314(c) of the Trust Indenture Act of 1939, to the extent applicable.
"Original Issue Discount Security" means any Debt 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 6.01.
"Outstanding", when used with reference to Debt Securities, shall, except as otherwise required by the Trust Indenture Act of 1939 and subject to the provisions of Section 8.04, mean, as of any particular time, all Debt Securities authenticated and delivered by the Trustee or any duly appointed Authenticating Agent under this Indenture, except
(a) Debt Securities theretofore cancelled by the Trustee, Authenticating Agent or paying agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company for the Holders of such Debt Securities (if the Company shall act as its own paying agent), provided that if such Debt Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been mailed as in Article Three provided, or provision satisfactory to the Trustee shall have been made for mailing such notice; and
(c) Debt Securities in lieu of or in substitution for which other Debt Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, unless proof satisfactory to the Company is presented that any such Debt Securities are held by persons in whose hands any of such Debt Securities is a valid, binding and legal obligation of the Company.
In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of all series of Outstanding Debt Securities denominated in a currency other than U.S. Dollars have given any request, demand, authorization, direction, notice, consent or waiver hereunder, and for the purpose of Section 9.05 herein, the principal amount of such Outstanding Debt Securities shall be deemed to be that amount of U.S. Dollars that could be obtained for such principal amount on the basis of the spot rate of exchange for purchasing U.S. Dollars with such currency as of the date of determination.
"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 a city or any political subdivision thereof designated as such pursuant to Sections 2.02 and 4.02.
"Principal Office of the Trustee", or other similar term, means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 123 South Broad Street, Philadelphia, Pennslyvania 19109, Attention: Corporate Trust Administration.
"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 president, any executive vice president, any senior vice president, any vice president, any assistant vice president, the cashier, any assistant cashier, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any senior trust officer, any trust officer, any assistant trust officer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject.
"Senior Indebtedness" means all indebtedness for borrowed money of the Company, whether outstanding on the date of this Indenture or incurred after the date of this Indenture, which is not by its terms subordinate to other indebtedness of the Company.
"Subsidiary" means any corporation or other Person of which the Company, or the Company and one or more Subsidiaries, or any one or more Subsidiaries, directly or indirectly owns voting securities or other similar equity interests entitling the owners thereof to elect a majority of the directors or individuals holding similar positions in other Persons, either at all times or so long as there is no default or contingency which permits the owners of any other class or classes of securities or other interests to vote for the election of one or more directors or individuals holding similar positions in other Persons, but shall not include any corporation or other Person with respect to which the Company or any other Subsidiary has become entitled to elect a majority of the directors or individuals holding similar positions in other Persons solely due to a default or other contingency which is temporary in character and has had a continuous existence of less than one year.
"Trustee" means First Union National Bank and, subject to the provisions of Article Seven hereof, shall also include its successors and assigns as Trustee hereunder. If pursuant to the provisions of this Indenture there shall be at any time more than one Trustee hereunder, the term "Trustee" as used with respect to Debt Securities of any series shall mean the Trustee with respect to Debt Securities of that series.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture, except as provided in Section 10.03.
"U.S. Government Obligations" shall mean securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clause (i) or (ii) 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 U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
"Yield to Maturity" means the yield to maturity, calculated at the time of issuance of Debt Securities or, if applicable, at the most recent redetermination of interest on such series and calculated in accordance with accepted financial practice.
ARTICLE TWO
DESCRIPTION, EXECUTION
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. FORMS. (a) The Debt Securities of each series shall be in substantially the form of Exhibit A to this Indenture or in substantially such other form as shall be established by or pursuant to a resolution of the Board of Directors of the Company 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 legends or endorsements placed thereon as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Debt Securities of such series may be listed, or to conform to usage.
The Trustee's Certificate of Authentication on all Debt Securities shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein provided for in the within-mentioned Indenture.
First Union National Bank, as Trustee
By __________________________________ Authorized Representative
An Authenticating Agent's certificate of authentication on all Debt Securities which may be authenticated by an Authenticating Agent shall be in substantially the following form:
AUTHENTICATING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein provided for in the within-mentioned Indenture.
[Name of Authenticating Agent], as Authenticating Agent for the Trustee
By __________________________________ Authorized Representative
(b) The resolutions adopted by the Board of Directors, or the indenture supplemental hereto, establishing the form and terms of the Debt Securities of any series pursuant to Sections 2.01 and 2.02, respectively, of this Indenture, may provide for issuance of the Debt Securities in global form. If Debt Securities of a series are so authorized to be issued in global form, any such global Debt Security may provide that it shall represent the aggregate amount of Debt Securities from time to time endorsed thereon and may also provide that the aggregate amount of outstanding Debt Securities represented thereby may from time to time be reduced. Any endorsement of a Debt Security in global form to reflect any decrease in the amount or changes in the rights of Holders of Debt Securities represented thereby shall be made in such manner and by such person or persons as shall be specified therein.
SECTION 2.02. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal amount of Debt Securities which may be authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be established in or pursuant to a resolution or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series,
(1) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt Securities of the series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to Section 2.06, 2.07, 2.08, 3.03 or 10.04);
(3) the date or dates on which the principal and premium, if any, of the Debt Securities of the series is payable;
(4) the rate or rates, or the method of determination thereof, at which
the Debt Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, the interest payment dates on
which such interest shall be payable and, if other than as set forth in
Section 2.04, the record dates for the determination of Holders to whom
interest is payable;
(5) if an Original Issue Discount Security, the Yield to Maturity;
(6) the place or places (the "Place of Payment") where the principal of, and premium, if any, and any interest on Debt Securities of the series shall be payable;
(7) the price or prices at which, the period or periods within which and the terms and conditions upon which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01;
(11) the non-application of, addition to, or change in, any of the Events of Default with respect to the Debt Securities, and the remedies with respect thereto;
(12) in the case of any series of non-interest bearing Debt Securities, the "stated intervals" for purposes of Section 312(a) of the Trust Indenture Act of 1939;
(13) the currency or currencies in which payments on the Debt Securities are payable, which may include United States or any foreign currency and any unit of two or more currencies; and
(14) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors or in any such indenture supplemental hereto.
SECTION 2.03. AUTHENTICATION. The Debt Securities of each series shall be issuable in such form and in such denominations as shall be specified as contemplated by Section 2.02. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debt Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article Two, the Trustee shall thereupon authenticate, or cause the Authenticating Agent to authenticate, and deliver said Debt Securities to or upon Company Order. In authenticating, or causing to be authenticated, such Debt Securities, and accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Trustee and the Authenticating Agent shall be entitled to receive and (subject to the requirements of Section 315 of the Trust Indenture Act of 1939) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors, certified by the Secretary or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate prepared in accordance with the requirements of Section 314(c) of the Trust Indenture Act of 1939 and setting forth the terms of the Debt Securities as required pursuant to Sections 2.01 and 2.02, respectively;
(4) an Opinion of Counsel for the Company prepared in accordance with the requirements of Section 314(c) of the Trust Indenture Act of 1939 which shall also state:
(a) that the form of such Debt Securities has been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.01 in conformity with the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.02 in conformity with the provisions of this Indenture;
(c) that such Debt Securities, when authenticated and delivered by the Trustee or the Authenticating Agent and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles;
(d) that all applicable laws and requirements in respect of the execution and delivery by the Company of the Debt Securities have been complied with and that authentication and delivery of the Debt Securities by the Trustee or the Authenticating Agent will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver, or to cause the Authenticating Agent to decline to authenticate and deliver, any Debt Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.
SECTION 2.04. DATE AND DENOMINATION OF DEBT SECURITIES. The Debt Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 2.02. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any multiple of $1,000. Debt Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Company executing the same may determine with the approval of the Trustee.
The person in whose name any Debt Security of a particular series is registered at the close of business on any record date (as hereinafter defined) with respect to any interest payment date for such series shall be entitled to receive the interest payable on such interest payment date notwithstanding the cancellation of such Debt Security upon any registration of transfer or exchange subsequent to the record date and prior to such interest payment date; provided, however, that if and to the extent that the Company shall default in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose names Outstanding Debt Securities of such series are registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the Holders of such Debt Securities not less than 15 days preceding such subsequent record date, such record date to be not less than five days preceding the date of payment of such defaulted interest. Except as otherwise specified as contemplated by Section 2.02 for Debt Securities of a particular series, the term "record date" as used in this Section with respect to any regular interest payment date, shall mean the last day of the calendar month preceding such interest payment date if such interest payment date is the fifteenth day of the calendar month, and shall mean the fifteenth day of the calendar month preceding such interest payment date if such interest payment date is the first day of a calendar month, whether or not such day shall be a day on which banking institutions in The City of New York are authorized or required by law or executive order to close or remain closed.
Interest on the Debt Securities may at the option of the Company be paid by check mailed to the persons entitled thereto at their respective addresses as such appear on the registry books of the Company or by wire transfer payable to an account specified by such persons.
SECTION 2.05. EXECUTION OF DEBT SECURITIES. The Debt Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signature of its Chairman of the Board, its Vice Chairman of the Board, or President or a Vice President and by its Treasurer or its Secretary or an Assistant Treasurer or Assistant Secretary, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). Only such Debt Securities as shall bear thereon a certificate of authentication substantially in the form herein recited, executed by the Trustee or the Authenticating Agent, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee or the Authenticating Agent upon any Debt Security executed by the Company shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Debt Securities shall cease to be such officer before the Debt Securities so signed shall have been authenticated and delivered by the Trustee or the Authenticating Agent, or disposed of by the Company, such Debt Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Debt Securities had not ceased to be such officer of the Company; and any Debt Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Debt Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF DEBT SECURITIES. Debt Securities of any series may be exchanged for a like aggregate principal amount and maturity of Debt Securities of the same series in other authorized denominations. Debt Securities to be exchanged shall be surrendered, at the option of the Holders thereof, at any of the offices or agencies as may be designated and maintained by the Company for such purpose in accordance with the provisions of Section 4.02, and the Company shall execute and register and the Trustee shall authenticate and deliver in exchange therefor the Debt Security or Debt Securities which
the Holder making the exchange shall be entitled to receive. Each person designated by the Company pursuant to the provisions of Section 4.02 as a person authorized to register and register transfer of the securities is sometimes herein referred to as a "Debt Security registrar".
The Company shall keep, at each such office or agency, a register for each series of Debt Securities issued hereunder (the registers of all Debt Security registrars being herein sometimes collectively referred to as the "Debt Security register" or the "registry books of the Company") in which, subject to such reasonable regulations as it may prescribe, the Company shall register securities and shall register the transfer of Debt Securities as in this Article Two provided. The Debt Security register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the Debt Security register shall be open for inspection by the Trustee and any security registrar other than the Trustee. Upon due presentment for registration of transfer of any Debt Security of any series at any designated office or agency, the Company shall execute and register and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Debt Security or Debt Securities of the same series for an equal aggregate principal amount. Registration or registration of transfer of any Debt Security by any Debt Security registrar in the registry books of the Company maintained by such Debt Security registrar, and delivery of such Debt Security, duly authenticated, shall be deemed to complete the registration or registration of transfer of such Debt Security.
The Company will at all times designate one person (who may be the Company and who need not be a Debt Security registrar) to act as repository of a master list of names and addresses of the Holders of the Debt Securities. The Company shall act as such repository unless and until some other person is, by written notice from the Company to the Trustee and each Debt Security registrar, designated by the Company to act as such. The Company shall cause each Debt Security registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such registrar, as may be necessary to enable such repository to maintain such master list on as current a basis as is practicable.
No person shall at any time be designated as or act as a Debt Security registrar unless such person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations.
All Debt Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Company and the Trustee duly executed by, the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of transfer of Debt 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 therewith.
The Company shall not be required to exchange or register a transfer of (a) any Debt Securities of any series for the period of 15 days next preceding the selection of Debt Securities of that series to be redeemed and thereafter until the day of the mailing of a notice of redemption of Debt Securities of that series selected for redemption, or (b) any Debt Securities selected, called or being called for redemption in whole or in part except, in the case of any Debt Security to be redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES. In case any temporary or definitive Debt Security shall become mutilated or be destroyed, lost or stolen, the Company in the case of a mutilated Debt Security shall, and in the case of a lost, stolen or destroyed Debt Security may in its discretion, execute and, upon the written request or authorization of any officer of the Company, the Trustee or the Authenticating Agent shall authenticate and deliver, a new Debt Security of the same series, bearing a number not contemporaneously outstanding in exchange and substitution for the mutilated Debt Security, or in lieu of and in substitution for the Debt Security so destroyed, lost or stolen. In every case the applicant for a substituted Debt Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of such Debt Security and of the ownership thereof.
Upon the issuance of any substitute Debt Security, 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 connected therewith. In case any Debt Security which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Debt Security, pay or authorize the payment of such Debt Security (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Debt Security and the ownership thereof.
Every substitute Debt Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Debt Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company as
herein provided, whether or not the destroyed, lost or stolen Debt Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of
the same series duly issued hereunder. All Debt Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities and shall preclude (to the extent lawful) any and all
other rights or remedies with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08. TEMPORARY DEBT SECURITIES. Pending the preparation of definitive Debt Securities of any series the Company may execute and the Trustee or Authenticating Agent shall authenticate and deliver temporary Debt Securities (printed, lithographed or typewritten). Temporary Debt Securities shall be issuable in any authorized denomination and substantially in the form of the definitive Debt Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as may be determined by the Company. Every such temporary Debt Security shall be authenticated by the Trustee or the Authenticating Agent upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Debt Securities in lieu of which they are issued. Without unreasonable delay the Company will execute and deliver to the Trustee definitive Debt Securities of such series and thereupon any or all temporary Debt Securities of such series may be surrendered in exchange therefor, at the option of the Holders thereof, at any offices or agencies as may be designated and maintained by the Company for such purpose in accordance with the provisions of Section 4.02, and the Trustee or the Authenticating Agent shall authenticate and deliver in exchange for such temporary Debt Securities an equal aggregate principal amount and maturity of definitive Debt Securities of the same series. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities of the same series.
SECTION 2.09. CANCELLATION OF DEBT SECURITIES PAID. All Debt Securities surrendered for the purpose of payment, redemption, repayment, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company, any Debt Security registrar, any Authenticating Agent, any paying agent or any other agent of the Company or of the Trustee, be delivered to the Trustee and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Debt Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee may dispose of cancelled Debt Securities in accordance with its standard procedures and deliver a certificate of such disposition to the Company or, at the written request of the Company, shall deliver cancelled Debt Securities to the Company. If the Company shall acquire any of the Debt Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Debt Securities unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.10. COMPUTATION OF INTEREST. Except as otherwise specified as contemplated by Section 2.02 for Debt Securities of any series, interest on the Debt Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS
SECTION 3.01. APPLICABILITY OF ARTICLE. The provisions of this Article Three shall be applicable, as the case may be, (i) to the Debt Securities of any series which are redeemable before their maturity and (ii) to any sinking fund for the retirement of Debt Securities of any series, in either case except as otherwise specified as contemplated by Section 2.02 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Debt 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 Debt Securities of any series is herein referred to as an "optional sinking fund payment".
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES. In case the Company shall desire to exercise any right to redeem all, or, as the case may be, any part of, the Debt Securities of any series in accordance with their terms, it shall fix a date for redemption and shall mail or cause to be mailed a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities of such series so to be redeemed as a whole or in part at their last addresses as the same appear on the registry books of the Company and to the Trustee, except as the resolution adopted by the Board of Directors or the provisions of an indenture supplemental hereto to establish the terms of any series of Debt Securities may otherwise provide. Such mailing shall be by first class mail. The notice if mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Debt Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which the Debt Securities of such series are to be redeemed, the place or places of payment, that payment will be made upon presentation and surrender of such Debt Securities, that any interest accrued to the date fixed for redemption will be paid as specified in said notice, and that on and after said date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Debt Securities of a series are to be redeemed the notice of redemption shall specify the number or numbers of the Debt Securities of that series to be redeemed. In case any Debt Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities of that series in principal amount equal to the unredeemed portion thereof will be issued.
On or before the redemption date specified in the notice of redemption given as provided in this Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or if the Company is acting as its own paying agent will segregate and hold in trust as provided in Section 4.04) an amount of money sufficient to redeem on the redemption date all the Debt Securities or portions thereof so called for redemption, together with accrued interest thereon to the date fixed for redemption. If less than all the Debt Securities of a series are to be redeemed the Company will give the Trustee notice not less than 50 days prior to the redemption date as to the aggregate principal amount and maturity of Debt Securities of such series to be redeemed. The Trustee shall select in such manner as it shall deem appropriate and fair or cause to be selected by lot, the Debt Securities of that series or portions thereof to be redeemed and shall promptly notify the Company in writing of the Debt Securities to be redeemed. Debt Securities of a series may be redeemed in part only in multiples of the smallest authorized denomination of that series.
SECTION 3.03. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If notice of redemption has been given as provided in Section 3.02 or Section 3.05, the Debt Securities or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with any interest accrued to
the date fixed for redemption, and on and after said date (unless the Company shall default in the payment of such Debt Securities or portions of such Debt Securities, together with any interest accrued to said date) any interest on the Debt Securities of such series or portions of Debt Securities of such series so called for redemption shall cease to accrue. On presentation and surrender of such Debt Securities at a place of payment in said notice specified, such Debt Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with any interest accrued thereon to the date fixed for redemption; provided, however, that any installment of interest becoming due on or prior to the date fixed for redemption shall be payable to Holders of such Debt Securities registered as such on the relevant record date according to their terms.
Upon presentation of any Debt Security redeemed in part only, the Company shall execute a new Debt Security or Debt Securities and the Trustee or the Authenticating Agent shall authenticate and deliver to the Holder thereof, at the expense of the Company, such new Debt Security or Debt Securities of the same series, of authorized denominations, in an aggregate principal amount equal to the unredeemed portion of the Debt Security so presented.
SECTION 3.04. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH DEBT SECURITIES. In lieu of making all or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Debt Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Debt Securities of that series which have been redeemed either at the election of the Company pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Debt Securities; provided that such Debt Securities have not been previously so credited. Such Debt Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Debt Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 3.05. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not less than 50 days prior to each sinking fund payment date for any series of Debt Securities, the Company will deliver to the Trustee a certificate signed by a Vice President or the Treasurer or any Assistant Treasurer of the Company 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 (which cash may be deposited with the Trustee or with one or more paying agents, or if the Company is acting as its own paying agent segregated and held in trust as provided in Section 4.04) and the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant to Section 3.04 (which Debt Securities, if not theretofore delivered, will accompany such certificate, such certificate to set forth the basis for such credit and to state that such Debt Securities have not been previously so credited) 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 also state that no Event of Default has occurred and is continuing 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 (or to deliver the Debt Securities specified in this paragraph), 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 Debt Securities subject to a mandatory sinking fund payment without the option to deliver or credit Debt Securities as provided in Section 3.04 and without the right to make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000 (or a lesser sum if the Company shall so request or determine) with respect to the Debt Securities of any particular series shall be applied by the Trustee (or by the Company if the Company is acting as its own paying agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking
fund payment date, on the next sinking fund payment date following the date of such payment) to the redemption of such Debt Securities at the redemption price specified in such Debt Securities for operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee (or by the Company if the Company is acting as its own paying agent) to the redemption of Debt Securities shall be added to the next cash sinking fund payment received by the Trustee (or if the Company is acting as its own paying agent, segregated and held in trust as provided in Section 4.04) for such series and, together with such payment (or such amount so segregated), shall be applied in accordance with the provisions of this Section 3.05. Any and all sinking fund moneys with respect to the Debt Securities of any particular series held by the Trustee (or if the Company is acting as its own paying agent, segregated and held in trust as provided in Section 4.04) on the last sinking fund payment date with respect to Debt Securities of such series and not held for the payment or redemption of particular Debt Securities of such series shall be applied by the Trustee (or by the Company if the Company is acting as its own paying agent), together with other moneys, if necessary, to be deposited (or segregated) sufficient for the purpose, to the payment of the principal of the Debt Securities of that series at maturity.
The Trustee shall select or cause to be selected the Debt Securities to be redeemed upon such sinking fund payment date in the manner specified in the last paragraph of Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the notice of redemption shall also state that the Debt Securities are being redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in Section 3.03.
On or before each sinking fund payment date, the Company shall pay to the Trustee in cash (or if the Company is acting as its own paying agent will segregate and hold in trust as provided in Section 4.04) a sum equal to any interest accrued to the date fixed for redemption of Debt Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Debt Securities of a series with sinking fund moneys or mail any notice of redemption of such Debt Securities by operation of the sinking fund for such series during the continuance of a default in payment of interest, if any, on such Debt Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) with respect to such Debt Securities, except that if the notice of redemption of any such Debt Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee (or the Company if the Company is acting as its own paying agent) shall redeem such Debt Securities if cash sufficient for that purpose shall be deposited with the Trustee (or segregated by the Company) for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of such Debt Securities; provided, however, that in case such default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Debt Securities on which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company covenants and agrees for the benefit of each series of Debt Securities that it will duly and punctually pay or cause to be paid the principal of, premium, if any, and interest, if any, on each of the Debt Securities of that series at the places, at the respective times and in the manner provided in such Debt Securities.
SECTION 4.02. OFFICES FOR NOTICES AND PAYMENTS. As long as any of the Debt Securities of a series remain outstanding, the Company will designate and maintain, an office or agency in such Place of Payment where the Debt Securities of that series may be presented for payment, an office or agency where the Debt Securities of that series may be presented for registration of transfer and for exchange as in this Indenture provided and an office or agency where notices and demands to or upon the Company in respect of the Debt Securities of that series or this Indenture may be served. In addition to such office or offices or agency or agencies, the Company may from time to time designate and maintain one or more additional offices or agencies, where the Debt Securities of that series may be presented for registration of transfer or for exchange, and the Company may from time to time rescind such designation, as it may deem desirable or expedient. The Company will give to the Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Company shall fail to maintain such office or agency, or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Principal Office of the Trustee.
The Company hereby initially designates the offices of the Trustee located at Corporate Trust Operations NC 1153, Main Building 11th Floor, 230 South Tryon Street, Charlotte, North Carolina 28288 and 40 Broad Street, 5th Floor - Suite 550, New York, New York 10004, as the offices or agencies of the Company, where the Debt Securities of each series may be presented for payment, for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon the Company in respect of the Debt Securities of each series or this Indenture may be served. The Trustee is also designated as repository pursuant to Section 2.06 for the master list of the names and addresses of the Holders of the Debt Securities of each series.
SECTION 4.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.08, a successor trustee, so that there shall at all times be a Trustee with respect to each series of Debt Securities hereunder.
SECTION 4.04. PROVISIONS AS TO PAYING AGENT. (a) If the Company shall appoint a paying agent other than the Trustee with respect to the Debt Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04,
(1) that it will hold all sums held by it as such agent for the payment of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Debt Securities of such series) in trust for the benefit of the Holders of the Debt Securities of such series or of the Trustee, as the case may be, until such sums shall be paid to the Holders or to the Trustee, and will notify the Trustee of the receipt of sums to be so held;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Debt Securities of such series) to make any payment of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series when the same shall be due and payable; and
(3) that at any time during the continuance of any failure by the Company (or by any other obligor on the Debt Securities of such series) specified in the preceding paragraph (2), such paying agent will, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by it.
(b) If the Company shall act as its own paying agent with respect to the Debt Securities of any series, it will, on or before each due date of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of such Debt Securities a sum sufficient to pay such principal, premium, if any, or interest, if any, so becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor on the Debt Securities of such series) to make any payment of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding the Company may, at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 4.04 is subject to Sections 12.03 and 12.04.
(e) Whenever the Company shall have one or more paying agents with respect to the Debt Securities of any series, it will, prior to each due date of the principal of, premium, if any, or interest, if any, on the Debt Securities of such series, deposit with a designated paying agent a sum sufficient to pay the principal, premium, if any, and interest, if any, so becoming due, such sum to be held in trust for the benefit of the persons entitled to such principal, premium, if any, or interest, if any, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of any failure so to act.
SECTION 4.05. STATEMENT AS TO COMPLIANCE. The Company will deliver to the
Trustee on or before January 1 in each year (beginning with the first January 1
which is not less than 60 days following the first date of issuance of any
series of Debt Securities under this Indenture) a certificate complying with
Section 314(a)(4) of the Trust Indenture Act of 1939.
ARTICLE FIVE
HOLDER LISTS AND REPORTS BY THE TRUSTEE
SECTION 5.01. HOLDER LISTS. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series, (i) semiannually, not more than 15 days after each July 1 and January 1 and (ii) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of Debt Securities of such series as of a date not more than 15 days prior to the time such information is furnished; provided, however, that if and so long as the Trustee shall be designated by the Company to act as repository in accordance with the provisions of Section 2.06, such list shall not be required to be furnished.
SECTION 5.02. DELIVERY OF REPORTS BY THE TRUSTEE. The reports to be transmitted by the Trustee pursuant to the requirements of Section 313 of the Trust Indenture Act of 1939 shall be required to be transmitted on or before the first July 15 which is not less than sixty days following the first date of issuance of any series of Debt Securities under this Indenture, and on or before July 15 in every year thereafter, so long as any Debt Securities are outstanding hereunder, each such report to be dated as of the preceding May 15.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. "Event of Default" whenever used herein with respect to Debt Securities of any series means any one of the following events and such other events as may be established with respect to the Debt Securities of such series as contemplated by Section 2.02 hereof, continued for the period of time, if any, and after the giving of notice, if any, designated in this Indenture or as may be established with respect to such Debt Securities as contemplated by Section 2.02 hereof, as the case may be, unless it is either inapplicable or is specifically deleted or modified in the applicable resolution of the Board of Directors or in the supplemental indenture under which such series of Debt Securities is issued, as the case may be, as contemplated by Section 2.02:
(a) default in the payment of any installment of interest upon any Debt Security of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of, or premium, if any, on any Debt Security of such series as and when the same shall become due and payable whether at maturity, upon redemption, by declaration, repayment or otherwise, and continuance of such default for a period of 10 days; or
(c) default in the making or satisfaction of any sinking fund payment as and when the same shall become due and payable by the terms of the Debt Securities of such series, and continuance of such default for a period of 10 days; or
(d) failure on the part of the Company, duly to observe or perform any
other of the covenants or agreements on the part of the Company in respect
of the Debt Securities of such series contained in this Indenture (other
than a covenant or agreement in respect of the Debt Securities of such
series in default in whose observance or performance is elsewhere in this
Section specifically dealt with) continued for a period of 60 days after
the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given by registered mail to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Debt Securities of
all series at the time Outstanding; provided that such a default or breach
shall not be an Event of Default if it cannot with due diligence be cured
within such 60-day period due to causes beyond the control of the Company,
unless the Company shall fail to proceed promptly to cure the same and
thereafter prosecute the curing of such default or breach with diligence
and continuity. (In the event that such default or breach cannot be cured
within such 60-day period, before the expiration of such 60-day period the
Company shall furnish an Officers' Certificate, upon which the Trustee may
conclusively rely notwithstanding such default or breach, to the effect
that such default or breach cannot with due diligence be cured within such
60-day period due to causes beyond the control of the Company and that the
Company has not failed to proceed promptly to cure the same. Thereafter,
from time to time at the request of the Trustee, the Company shall furnish
an Officers' Certificate to the effect that the Company is prosecuting the
curing of such default or breach with diligence and continuity.); or
(e) a decree or order by a court having jurisdiction in the premises shall have been entered adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company, under the Federal Bankruptcy Code or any other similar applicable Federal or State law, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver or liquidator or trustee or assignee (or other similar official) in bankruptcy or insolvency of the Company, or of all or substantially all of the property of the Company, or for winding up or liquidation of the affairs of the Company shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of 60 days; or
(f) the Company shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under the Federal Bankruptcy Code or any other similar applicable Federal or State law,
or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee (or other similar official), in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
(g) any other Event of Default provided in the applicable resolution of
the Board of Directors or in the supplemental indenture under which such
series of Debt Securities is issued, as the case may be, as contemplated by
Section 2.02.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, then and in each and every such
case, unless the principal of all of the Debt Securities of such series shall
have already become due and payable, either the Trustee or the Holders of not
less than twenty-five percent in aggregate principal amount of the Outstanding
Debt Securities of such series or, in the case of an Event of Default specified
in clause (d), (e) or (f) of this Section 6.01, of all series (voting as a
class) with respect to which such Event of Default has occurred and is
continuing, by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the principal amount (or, if the Debt Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Debt
Securities of that series (or, in the case of an Event of Default specified in
clauses (d), (e) or (f) of this Section 6.01, of all of the Debt Securities of
all series with respect to which such Event of Default has occurred and is
continuing) and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Debt
Securities of such series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at any time after the
principal amount (or, if the Debt Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of the Debt Securities of any series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Debt Securities of such series and the principal of, and premium, if any, on
any and all Debt Securities of such series which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal at the same rate as the rate of interest
specified in the Debt Securities of such series, to the date of such payment or
deposit) and all amounts payable to the Trustee pursuant to the provisions of
Section 7.05 and any and all defaults under this Indenture with respect to such
series of Debt Securities, other than the nonpayment of principal of and
accrued interest on Debt Securities of such series which shall have become due
solely by acceleration, shall have been remedied or cured or waived or
provision shall have been made therefor to the satisfaction of the Trustee,
then and in every such case the Holders of a majority in aggregate principal
amount of the Debt Securities of such series then Outstanding, by written
notice to the Company and to the Trustee, may waive all defaults with respect
to such series and rescind and annul such declaration and its consequences; but
no such waiver or recission or annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such waiver or rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee and the Holders shall continue as though no such proceedings had been taken.
SECTION 6.02. PAYMENT OF DEBT SECURITIES ON DEFAULT; SUIT THEREFOR. The Company covenants that (a) in case default shall be made in the payment of any installment of interest upon any Debt Security of any series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default shall be made in payment of the principal of, or premium, if any, on any Debt Security of any series as and when the same shall become due and payable, whether at maturity of the Debt Securities of that series or upon redemption or by declaration, repayment or otherwise, and such default
shall have continued for a period of ten days or (c) in case of default in the making or satisfaction of any sinking fund payment when the same becomes due by the terms of the Debt Securities of any series, and such default shall have continued for a period of ten days--then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holder of any such Debt Security (or Holders of any series of Debt Securities in the case of clause (c) above) the whole amount that then shall have become due and payable on any such Debt Security (or securities of any such series in the case of clause (c) above) for principal, premium, if any, and interest, if any, with interest upon the overdue principal and premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon the overdue installments of interest, if any, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Debt Security of that series (or Debt Securities of any such series in the case of clause (c) above); and, in addition thereto, such further amount as shall be sufficient to cover costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the provisions of Section 7.05.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Company, or any other obligor upon such Debt Securities, and collect in the manner provided by law out of the property of the Company or any other obligor on such Debt Securities, wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Debt Securities of any series, under the Federal Bankruptcy Code or any other similar applicable Federal or State law, or in case a receiver or trustee (or other similar official) shall have been appointed for the property of the Company, or such other obligor upon such Debt Securities, or in the case of any other similar judicial proceedings relative to the Company, or other obligor on the Debt Securities of any series, or to the creditors or property of the Company or such other obligor upon such Debt Securities, the Trustee, irrespective of whether the principal of the Debt Securities of any series 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 pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal (or, if the Debt Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 6.01), premium, if any, and interest, if any, owing and unpaid in respect of the Debt Securities of any series and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders of Debt Securities of any series allowed in such judicial proceedings relative to the Company, or any other obligor on the Debt Securities of any series, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to the provisions of Section 7.05 and incurred by it up to the date of such distribution; and any receiver, assignee or trustee (or other similar official) in bankruptcy or reorganization is hereby authorized by each of the Holders 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 costs and expenses of collection and any further amounts payable to the Trustee pursuant to the provisions of Section 7.05 and incurred by it up to the date of such distribution.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of Debt Securities any plan of reorganization, arrangement, adjustment or composition affecting any of the Debt Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect to the claim of any Holder of Debt Securities in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under the Debt Securities of any series, may be enforced by the Trustee without the possession of any of the Debt Securities of such series or
the production thereof in any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Debt Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Indenture, to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Debt Securities to which such proceedings relate, and it shall not be necessary to make any Holders of such Debt Securities parties to any such proceedings.
SECTION 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys collected by the Trustee pursuant to this Article shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several Debt Securities in respect of which moneys have been collected, 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 pursuant to the provisions of Section 7.05;
Second: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due (at maturity, upon redemption, by declaration, repayment or otherwise) and be unpaid, to the payment of interest, if any, on such Debt Securities, in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Debt Securities, such payments to be made ratably to the persons entitled thereto;
Third: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall have become due (at maturity, upon redemption, by declaration, repayment or otherwise), to the payment of the whole amount then owing and unpaid upon such Debt Securities for principal, premium, if any, and interest, if any, with interest on the overdue principal, and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest, if any, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Debt Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Debt Securities, then to the payment of such principal, premium, if any, and interest, if any, without preference or priority of principal, and premium, if any, over interest, if any, or of interest, if any, over principal, and premium, if any, or of any installment of interest, if any, over any other installment of interest, if any, or of any such Debt Security over any other such Debt Security, ratably to the aggregate of such principal, premium, if any, and accrued and unpaid interest, if any; and
Fourth: To the payment of the remainder, if any, to the Company, to the extent such moneys were provided thereby, their respective successors or assigns, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.04. PROCEEDINGS BY HOLDERS OF DEBT SECURITIES. No Holder of any Debt Security of any series shall have any right by virtue of or by availing itself of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee (or other similar official), or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default with respect to Debt Securities of such series and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than twenty-five percent in aggregate principal amount of the Debt Securities of such series then Outstanding or, in the case of an Event of Default specified in clause (d), (e) or (f) of Section 6.01, of all series (voting as a class) with respect to which such Event of Default has occurred and is continuing, shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable security and indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding, it being understood and intended, and being expressly covenanted by the taker and Holder of every Debt Security with every other taker and Holder and the Trustee, that no one or more Holders of Debt Securities of such series 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 Holder of Debt Securities of such series, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Debt Securities of such series.
SECTION 6.05. PROCEEDINGS BY TRUSTEE. In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.06. REMEDIES CUMULATIVE AND CONTINUING. All powers and remedies given by this Article Six to the Trustee or to the Holders of Debt Securities of any series shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of such Debt Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any such Debt Securities to exercise any right or power accruing upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article Six or by law to the Trustee or to the Holders of Debt Securities of any series may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of Debt Securities of such series.
SECTION 6.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY HOLDERS OF DEBT SECURITIES. The Holders of a majority (voting as one class) in aggregate principal amount of the Debt Securities of each series affected at the time Outstanding shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Debt Securities of such series; provided, however, that (subject to the requirements of Section 315 of the Trust Indenture Act of 1939) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by a Responsible Officer shall determine that the action or proceeding so directed could involve the Trustee in personal liability or expense materially in excess of any indemnity offered pursuant to Section 7.05 hereof. The Holders of a majority in aggregate principal amount of the Debt Securities of such series at the time Outstanding may on behalf of the Holders of all of the Debt Securities of such series waive any past default or Event of Default with respect to such series and its consequences except a default in the payment of interest, if any, on, or the principal of or premium, if any, on any Debt Security of such series, or in the payment of any sinking fund installment with respect to Debt Securities of such series. Upon any such waiver the Company, the Trustee and the Holders of the Debt Securities of that series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 6.07, said default or Event of Default shall for all purposes of the Debt Securities of such series and this Indenture be deemed to have been cured and to be not continuing.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. RELIANCE ON DOCUMENTS AND OPINIONS. Subject to the requirements of Section 315 of the Trust Indenture Act of 1939:
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered to be taken by it hereunder in good faith and in accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of 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 therein or thereby;
(e) the Trustee shall not be liable for any action taken, omitted or suffered 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;
(f) the Trustee shall not be bound to make any inquiry or investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, or other paper or document unless requested in writing to do so by the Holders of a majority in aggregate principal amount of the Debt Securities of any series affected then outstanding; provided, however, that if the payment within a reasonable time to the Trustee of the costs and expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security conferred upon it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding; and the reasonable expense of such investigation shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
SECTION 7.02. RESPONSIBILITY FOR RECITALS. The recitals contained herein and in the Debt Securities (except in the certificates of authentication of the Trustee and the Authenticating Agent) shall be taken as the statements of the Company, and the Trustee and the Authenticating Agent assume no responsibility for the correctness of the same. The Trustee and the Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or the Debt Securities, provided that neither the Trustee nor the Authenticating Agent shall be relieved of its duty to authenticate Debt Securities only as authorized by this Indenture. The Trustee and the Authenticating Agent shall not be accountable for the use or application by the Company of any of the Debt Securities or of the proceeds thereof.
SECTION 7.03. OWNERSHIP OF DEBT SECURITIES. The Trustee or any Authenticating Agent and any agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Debt Securities with the same rights it would have if it were not Trustee, Authenticating Agent or such agent.
SECTION 7.04. MONEYS TO BE HELD IN TRUST. Subject to the provisions of Sections 12.03 and 12.04 hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon Company Order.
SECTION 7.05. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants and agrees to pay the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and, except as otherwise expressly provided, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents or counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may be attributable to its negligence or bad faith. If any property other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be entitled to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee, arising out of or in connection with the acceptance or administration of this trust and its duties hereunder, including the costs and expenses of defending itself against any claim of liability in the premises. The obligations of the Company under this Section 7.05 to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify the Trustee shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Debt Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Debt Securities.
SECTION 7.06. OFFICERS' CERTIFICATE AS EVIDENCE. Subject to the requirements of Section 315 of the Trust Indenture Act of 1939, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, omitted or suffered by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.07. ELIGIBILITY OF TRUSTEE. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the
United States or any State, which (a) is authorized under such laws to exercise
corporate trust powers, (b) is subject to supervision or examination by Federal
or State authority, (c) shall have at all times a combined capital and surplus
of not less than ten million dollars and (d) is eligible under the provisions
of the Trust Indenture Act of 1939. If such corporation publishes reports of
condition at least annually, pursuant to law, or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 7.07, the combined capital and surplus of such corporation at any time
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 7.07,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 7.08.
SECTION 7.08. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to any one or more or all series of Debt Securities by giving written notice of resignation to the Company and by mailing notice thereof to the Holders of the applicable series of Debt Securities at their addresses as they shall appear on the registry books of the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written instrument, in duplicate, executed under authority of the Board of Directors of the Company, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 60 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, or any Holder who has been a bona fide Holder of a Debt Security or Debt Securities of the applicable series for at least six months may, subject to the requirements of Section 315(e) of the Trust Indenture Act of 1939, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.07 with respect to any series of Debt Securities and shall fail to resign after written request therefor by the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting with respect to any series of Debt Securities, 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, the Company may remove the Trustee with respect to such series and appoint a successor trustee with respect to such series by written instrument, in duplicate, executed under authority of the Board of Directors of the Company, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the requirements of Section 315(e) of the Trust Indenture Act of 1939, any Holder who has been a bona fide Holder of a Debt Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee with respect to such series.
(c) The Holders of 66 2/3% in aggregate principal amount of the Debt Securities of one or more series (each series voting as a class) or all series at the time Outstanding may at any time remove the Trustee with respect to the applicable series or all series, as the case may be, and appoint with respect to the applicable series or all series, as the case may be, a successor trustee by written notice of such action to the Company, the Trustee and the successor trustee which shall be deemed appointed as successor trustee with respect to the applicable series of Debt Securities or all series, as the case may be, unless within ten days after such nomination the Company objects thereto, in which case the Trustee so removed or any Holder of a Debt Security of the applicable series (in the case of any such objection to a nomination of a successor trustee with respect to such series) or any Holder (in the case of any such objection to a nomination of a successor trustee with respect to all series), upon the terms, and conditions and otherwise as in subsection (a) of this Section 7.08 provided, may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to such series of Debt Securities or all series, as the case may be.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 7.08 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.09.
SECTION 7.09. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee appointed as provided in Section 7.08 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to any or all applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, or of the successor trustee, the trustee ceasing to
act shall, upon payment (or due provision therefor) of any amounts then due it
pursuant to the provisions of Section 7.05, execute and deliver an instrument
transferring to such successor trustee all the rights and powers with respect
to such series of the trustee so ceasing to act. Upon request of any such
successor trustee, the Company shall execute any and all instruments in writing
in order more fully and certainly to vest in and confirm to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by
such trustee to secure any amounts then due it pursuant to the provisions of
Section 7.05.
In case of the appointment hereunder of a successor trustee with respect to the Debt Securities of one or more (but not all) series, the Company, the predecessor trustee and each successor trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Debt Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee, and 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.
No successor trustee with respect to a series of Debt Securities shall accept appointment as provided in this Section 7.09 unless at the time of such acceptance such successor trustee shall, with respect to such series, be qualified under the requirements of the Trust Indenture Act of 1939 and eligible under the provisions of Section 7.07.
Upon acceptance of appointment by a successor trustee with respect to any series as provided in Section 7.09, the Company shall mail notice of the succession of such trustee hereunder to the Holders of Debt Securities of such series at their addresses as they shall appear on the registry books of the Company. If the Company fails to mail such notice within ten days after the acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company.
SECTION 7.10. SUCCESSION BY MERGER. 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 the corporate trust business of the Trustee, shall be the successor to the Trustee hereunder, provided such corporation shall be qualified under the requirements of the Trust Indenture Act of 1939 and eligible under the provisions of Section 7.07, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trust created by this Indenture with respect to one or more series of Debt Securities, any of such Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor trustee, and deliver such Debt Security so authenticated; and in case at that time any of such Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt Securities either in the name of such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion or consolidation, the name of any predecessor hereunder; and in all such cases such certificate shall have the full force which it is anywhere in such Debt Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.11. AUTHENTICATING AGENTS. There may be one or more Authenticating Agents appointed by the Trustee, with the consent of the Company, having power to act on behalf of the Trustee and subject to its direction in the authentication and delivery of Debt Securities of one or more series issued upon exchange or transfer thereof as fully to all intents and purposes as though any such Authenticating Agent had been expressly authorized to authenticate and deliver such Debt Securities. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under the laws of the United States of America or of any State thereof authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of at least $5,000,000 and being subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section 7.11 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 herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating
Agent hereunder, if such successor corporation is otherwise eligible under this
Section 7.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination 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 any Authenticating Agent shall cease to be eligible under this Section 7.11, the Trustee may, and upon the request of the Company shall, promptly appoint a successor Authenticating Agent eligible under this Section 7.11, and shall give written notice of such appointment to the Company and to the Holders of Debt Securities at their addresses as they shall appear on the registry books of the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent herein.
The Trustee agrees to pay to any Authenticating Agent from time to time reasonable compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments, subject to Section 7.05. Any Authenticating Agent shall have no responsibility or liability for any action taken by it as such in accordance with the directions of the Trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. ACTION BY HOLDERS. Whenever in this Indenture it is provided
that the Holders of a specified percentage in aggregate principal amount of the
Debt Securities of any or all series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such action
the Holders of such specified percentage have joined therein may be evidenced
(a) by any instrument or any number of instruments of similar tenor executed by
such Holders in person or by agent or proxy appointed in writing, or (b) by the
record of such Holders of Debt Securities voting in favor thereof at any
meeting of such Holders duly called and held in accordance with the provisions
of Article Nine, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Holders.
SECTION 8.02. PROOF OF EXECUTION BY HOLDERS. Subject to the requirements of
Section 315 of the Trust Indenture Act of 1939 and Sections 7.01 and 9.05,
proof of the execution of any instrument by a Holder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities shall be proved
by the registry books of the Company or by a certificate of the person
designated by the Company to act as repository in accordance with the
provisions of Section 2.06.
The record of any Holders' meeting shall be proved in the manner provided in
Section 9.06.
SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the Trustee and any agent of the Company or of the Trustee may deem the person in whose name a Debt Security shall be registered upon the books of the Company to be, and may treat him as, the absolute owner of such Debt Security (whether or not such Debt Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of, premium, if any, and interest, if any, on such Debt Security and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice to the contrary. All such payments so made to any Holder for the time being, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.
SECTION 8.04. COMPANY-OWNED DEBT SECURITIES DISREGARDED. In determining whether the Holders of the requisite aggregate principal amount of Debt Securities have concurred in any demand, request, notice, direction, consent or waiver under this Indenture, Debt Securities which are owned by the Company or any other obligor on the Debt Securities with respect to which such determination is being made, or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Debt Securities, with respect to which such determination is being made, shall be disregarded and deemed not to be Outstanding for the purposes of any such determination; provided, that for the purposes of determining whether the Trustee shall be protected in relying on any such demand, request, notice, direction, consent or waiver only Debt Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 8.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Debt Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Debt Security which is shown by the evidence to be included in the Debt Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at its principal office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by the Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future Holders of such Debt Security, and any Debt Security issued upon the registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon such Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE NINE
HOLDERS' MEETINGS
SECTION 9.01. PURPOSES OF MEETINGS. A meeting of Holders of Debt Securities of any or all series may be called at any time and from time to time pursuant to the provisions of this Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Debt Securities of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call a meeting of Holders of Debt Securities of any or all series to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders of Debt Securities of any or all 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 mailed to Holders of Debt Securities of each series affected at their addresses as they shall appear on the registry books of the Company. Such notice shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETINGS BY THE COMPANY OR HOLDERS. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the Holders of at least twenty-five percent in aggregate principal amount of the Debt Securities then Outstanding of any series that may be affected by the action proposed to be taken at the meeting, shall have requested the Trustee to call a meeting of the Holders of Debt Securities of all series that may be so affected, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders, in the amount specified above, may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.
SECTION 9.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any meeting of Holders a person shall (a) be a Holder of one or more Debt Securities with respect to which such meeting is being held or (b) be a person appointed by an instrument in writing as proxy by a Holder of one or more such Debt Securities. The only persons who shall be entitled to be present or to speak at any meeting of Holders shall be the persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Debt Securities 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 think fit.
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 as provided in Section 9.03, in which case the Company or the Holders 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 majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each Holder of Debt Securities with respect to which such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount (or in the case of Original Issue Discount Securities or Debt Securities of such series denominated in a currency other than Dollars or are denominated in units or composites of two or more currencies, such principal amount to be determined as of the record date as provided in the definition of "Outstanding.") of such Debt Securities held or represented by each Holder; provided, however, that no vote shall be cast or counted at any meeting in respect of any such Debt 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 other than by virtue of such Debt Securities held by him or instruments in writing as aforesaid duly designating him as the person to vote on behalf of other such Holders. At any meeting of Holders, the presence of persons holding or representing Debt Securities in an aggregate principal amount sufficient to take action on any business for the transaction of which such meeting was called shall constitute a quorum.
Any meeting of Holders of Debt Securities with respect to which a meeting was duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
SECTION 9.06. VOTING. The vote upon any resolution submitted to any meeting of Holders of Debt Securities with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders of Debt Securities or of their representatives by proxy and the principal amount and number or numbers of such Debt Securities 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 in duplicate of the proceedings of each meeting of Holders 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 mailed as provided in Section 9.02. The record shall show the principal amount of the Debt Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any records so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 9.07. NO DELAY OF RIGHTS BY MEETING. Nothing in this Article Nine shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders of any or all series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of any or all such series under any of the provisions of this Indenture or of the Debt Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. The Company when authorized by resolution of the Board of Directors and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation of the covenants, agreements and obligations of the Company, as the case may be pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or any
series of Debt Securities (and if such covenants are to be for the benefit
of less than all series of Debt Securities, stating that such covenants are
expressly being included for the benefit of such series) as the Board of
Directors of the Company shall consider to be for the protection of the
Holders of such Debt Securities or as may be required by Section 4.03 or
Section 11.02, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as herein
set forth; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Debt Securities in bearer or coupon form (including securities registrable as to principal only) and to provide for exchangeability of such Debt Securities with the Debt Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose;
(d) to establish the form or terms of Debt Securities of any series as permitted by Sections 2.01 and 2.02;
(e) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of any Debt Securities; and
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Debt Securities of one or more
series or 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 7.09.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Debt Securities at the time Outstanding, notwithstanding any of the provisions of Section 10.02.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the consent (evidenced as provided in Sections 8.01 and 8.02) of the Holders of not less than 66 2/3% in aggregate principal amount of the Debt Securities of each series issued under the Indenture (each series voting as a class) affected by such supplemental indenture at the time Outstanding, the Company, when authorized by a resolution of the Board of Directors and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debt Securities of each such series; provided, however, that, without the consent of the Holders of all Debt Securities affected then Outstanding, no such supplemental indenture shall (i) extend the fixed maturity of any Debt Security, or reduce the rate or extend the time of payment of interest, if any, thereon, or reduce the principal amount or premium, if any, thereon, or make the principal thereof or premium, if any, or interest, if any, thereon payable in any coin or currency other than that provided in any Debt Security, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 6.01 or adversely affect the right of repayment, if any, at the option of the Holder or (ii) reduce the aforesaid percentage of Debt Securities of any series, the Holders of which are required to consent to any such supplemental indenture. 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 Debt Securities, or which modifies the rights of the Holders of Debt 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 Debt Securities of any other series.
Upon the request of the Company, accompanied by a copy of the resolutions of the Board of Directors authorizing the execution and delivery of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section 10.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental indenture executed pursuant to the provisions of this Article Ten shall comply with the Trust Indenture Act of 1939, as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Ten, this Indenture shall be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of Debt Securities shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 10.04. NOTATION ON DEBT SECURITIES. Debt Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Ten may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, and such Debt Securities may be authenticated by the Trustee and delivered in exchange for the Debt Securities of such series then outstanding.
SECTION 10.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TRUSTEE. The Trustee, subject to the requirements of Section 315 of the Trust Indenture Act of 1939 and Section 7.01, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. COMPANY MAY NOT CONSOLIDATE EXCEPT UNDER CERTAIN CONDITIONS. The Company covenants that it will not merge or consolidate with any other Person or sell, convey, transfer or otherwise dispose of all or substantially all of its assets to any Person, unless (i) the Company shall be the continuing corporation, or the successor corporation or Person (if other than the Company) shall, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such corporation or Person, expressly assume the due and punctual payment of the principal of and, premium, if any, and interest, if any, on all the Debt Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company, and (ii) the Company or such successor corporation or Person, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance, transfer or other disposition, be in default in the performance of any such covenant or condition. In the event of any such sale, conveyance (other than by way of lease), transfer or other disposition, the predecessor company may be dissolved, wound up and liquidated at any time thereafter.
SECTION 11.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case of any such consolidation, merger, sale, conveyance (other than by way of lease), transfer or other disposition, and upon any such assumption by the successor corporation or Person, such successor corporation or Person shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company and the Company shall be relieved of any further obligation under this Indenture and under the Debt Securities. Such successor corporation or Person thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Debt Securities which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation or Person, instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee or the Authenticating Agent shall authenticate and shall deliver any Debt Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Debt Securities, which such successor corporation or Person thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Debt Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Debt Securities had been issued at the date of the execution hereof.
SECTION 11.03. DOCUMENTS TO BE GIVEN TRUSTEE. The Trustee, subject to the requirements of Section 315 of the Trust Indenture Act of 1939 and Section 7.01, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE OR CERTAIN OBLIGATIONS
SECTION 12.01. DISCHARGE OF INDENTURE. When (a) the Company shall deliver to
the Trustee for cancellation all Debt Securities of a series theretofore
authenticated (other than any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.07) and not theretofore cancelled; or (b) all Debt
Securities of such series not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company shall deposit with the Trustee, in
trust, funds sufficient to pay at maturity or upon redemption all of the Debt
Securities of such series (other than any Debt Securities of such series which
shall have been mutilated, destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.07) not theretofore cancelled or
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest, if any, due or to become due to such date of maturity or
redemption date, as the case may be, but excluding, however, the amount of any
money for the payment of the principal of and premium, if any, or interest, if
any, on the Debt Securities of such series (1) theretofore deposited with the
Trustee with respect to Debt Securities of such series and repaid by the
Trustee to the Company in accordance with the provisions of Section 12.04 or
(2) paid with respect to Debt Securities of such series to any State or to the
District of Columbia pursuant to its unclaimed property or similar laws, and if
in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect with respect to the Debt Securities of such series except as to
(A) the rights of Holders of Debt Securities of such series to receive solely
from funds deposited by the Company with the Trustee, in trust as described
above in this Section 12.01, payment of the principal of, premium, if any, and
the interest, if any, on such Debt Securities when such payments are due; (B)
the Company's obligations with respect to such Debt Securities under Sections
2.06, 2.07, 4.02 and 12.03; and (C) the rights, powers, duties and immunities
of the Trustee hereunder, and the Trustee, on demand of the Company accompanied
by an Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with and at the cost and expense
of the Company, shall execute such instruments as may be requested by the
Company acknowledging satisfaction of and discharging this Indenture with
respect to such series of Debt Securities.
SECTION 12.02. DISCHARGE OF OBLIGATIONS. At the Company's option, either (a) the Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to any series of Debt Securities on the ninety-first day after the applicable conditions set forth below have been satisfied or (b) the Company shall cease to be under any obligation to comply with any term, provision or condition set forth in Sections 11.01 and 11.02 with respect to any series of Debt Securities and any other covenants provided in a resolution delivered to the Trustee pursuant to Section 2.02 hereof or an indenture supplemental hereto with respect to such series of Debt Securities at any time after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders
of the Debt Securities of such series (A) money in an amount, or (B) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one business day before the due date of any payment, money in an amount, or (C) a combination of (A) and (B), sufficient, in the opinion (with respect to (A) and (B)) of a nationally recognized firm of independent public accountants selected by the Company expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund payments) of, premium, if any, and interest, if any, on, the Outstanding Debt Securities of such series on the dates such installments of principal, premium, if any, and interest, if any, are due (taking into account any redemption pursuant to optional sinking fund payments notice of which redemption is provided to the Trustee at the time of the deposit referred to in this paragraph (1));
(2) if the Debt Securities of such series are then listed on the New York Stock Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Company's exercise of its option under this paragraph would not cause such Debt Securities to be delisted;
(3) no Event of Default with respect to the Debt Securities of such series under Sections 6.01(a), 6.01(b), 6.01(c), or 6.01(f) of this Indenture shall have occurred and be continuing on the date of such deposit and the Company shall have furnished an Officer's Certificate to such effect;
(4) the Company shall have delivered to the Trustee (a) an Opinion of Counsel or (b) a ruling from, or published by, the Internal Revenue Service, whichever of (a) or (b) the Company shall determine, to the effect that Holders of the Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its option under this Section 12.02 and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised.
"Discharged" means, for purposes of this Section 12.02, that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by, and obligations under, the Debt Securities of such series and to have
satisfied all the obligations under this Indenture relating to the Debt
Securities of such series (and the Trustee, at the expense of the Company,
shall execute such instruments as may be requested by the Company acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series
to receive, solely from the trust fund described above, payment of the
principal of, premium, if any, and the interest, if any, on such Debt
Securities when such payments are due; (B) the Company's obligations with
respect to such Debt Securities under Sections 2.06, 2.07, 4.02 and 12.03; and
(C) the rights, powers, duties and immunities of the Trustee hereunder.
SECTION 12.03. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All moneys and U.S. Government Obligations deposited with the Trustee pursuant to the provisions of Section 12.01 or 12.02 and the principal and interest in respect of U.S. Government Obligations shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company if acting as its own paying agent), to the Holders of the particular Debt Securities for payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if any, and interest, if any.
SECTION 12.04. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and discharge of this Indenture all moneys then held by any paying agent of the Debt Securities (other than the Trustee) shall, upon demand of the Company, be repaid to the Company (to the extent such money shall have been deposited by the Company) or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys.
SECTION 12.05. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or paid to the Trustee or a paying agent by the Company for payment of the principal of, premium, if any, or interest, if any, on Debt Securities of any series and not applied but remaining unclaimed by the Holders of Debt Securities of that
series for two years after the date upon which the principal of, premium, if any, or interest, if any, on such Debt Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee or such paying agent on written demand and thereupon all liability of the Trustee or such paying agent with respect to such money shall cease; and the Holder of any such Debt Securities shall thereafter look only to the Company for any payment which such Holder may be entitled to collect.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.01. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS. No recourse for the payment of the principal of, premium, if any, or interest, if any, on any Debt Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any Debt Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Debt Securities.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the covenants, stipulations, promises and agreements by the Company in this Indenture contained shall bind their respective successors and assigns whether so expressed or not.
SECTION 14.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company.
SECTION 14.03. ADDRESSES FOR NOTICES. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Debt Securities on the Company may be given or served by being deposited postage prepaid by first class mail in a post office letter box addressed (until another address is filed by the Company with the Trustee) to, McDonald's Corporation, Attention: Treasurer, One McDonald's Plaza, Oak Brook, IL 60521, with a copy to the Controller. Any notice, direction, request or demand by any Holder of Debt Securities to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Principal Office of the Trustee.
SECTION 14.04. GOVERNING LAW. THIS INDENTURE AND EACH DEBT SECURITY SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
SECTION 14.05. LEGAL HOLIDAYS. In any case where the date of maturity of interest, if any, on or principal of, or premium, if any, on the Debt Securities or the date fixed for redemption or repayment of any Debt Security will be in the City of New York, New York, a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or executive order to close or remain closed, then payment of such interest, if any, on or principal of or premium, if any, on the Debt Securities need not be made on such date but may be made on the next succeeding day not in such city, a Saturday, a Sunday, a legal holiday or a day on which banking institutions are authorized or required by law or executive order to close or remain closed, with the same force and effect as if made on the date of maturity or a date fixed for redemption or repayment, and no interest shall accrue for the period from and after such date.
SECTION 14.06. TABLE OF CONTENTS AND HEADINGS. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 14.07. EXECUTION IN COUNTERPARTS. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
SECTION 14.08. SEPARABILITY. In case any provision in this Indenture or in the Debt Securities 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 14.09. BENEFITS. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give to any person, other than the parties hereto and their successors hereunder, and the Holders of the Debt Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
ARTICLE FIFTEEN
SUBORDINATION
SECTION 15.01. SUBORDINATION IN RIGHT OF PAYMENT TO ALL SENIOR INDEBTEDNESS.
Anything in the Debt Securities or the Indenture to the contrary
notwithstanding, the indebtedness evidenced by the Debt Securities shall be
subordinate in right of payment, to the extent and in the manner hereinafter
set forth, to all Senior Indebtedness. As used herein, "subordinate" shall mean
the following: that (i) in the event of any insolvency or bankruptcy
proceedings, and any receivership, liquidation, reorganization or other similar
proceedings in connection therewith, relative to the Company or its creditors
or its property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company, whether or not involving
insolvency or bankruptcy proceedings, then all principal, premium, if any, and
interest on all Senior Indebtedness shall first be paid in full, or such
payment be provided for, before any payment on account of principal, premium,
if any, or interest, if any, is made by the Company upon the indebtedness
evidenced by the Debt Securities, and in any such proceedings any payment or
distribution of assets of the Company of any kind or character, whether in cash
or property or securities, which may be payable or deliverable in respect of
the Debt Securities (except for the provisions of this Article Fifteen) shall
be paid or delivered directly to the holders of such Senior Indebtedness, or
their representative or representatives or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any such Senior
Indebtedness may have been issued, pro rata, as their respective interests may
appear, for application in payment thereof, unless and until such Senior
Indebtedness shall have been paid and satisfied in full (after giving effect to
any concurrent payment or distributions, or provisions therefor, to the holders
of such Senior Indebtedness) or such payment and satisfaction shall have been
provided for; provided, however, that in the event that payment or delivery of
such cash, property or securities to the Holders of the Debt Securities is
authorized by an order or decree made by a court of competent jurisdiction in a
reorganization proceeding under any applicable law and giving effect to the
provisions hereinbefore set forth for the subordination of the Debt Securities
to the Senior Indebtedness, no payment or delivery of such cash, property or
securities shall be made to the holders of Senior Indebtedness; provided,
further, that no such delivery shall be made to the holders of Senior
Indebtedness of securities which are issued by the Company, as reorganized, or
by the corporation succeeding to the Company or acquiring its property and
assets, pursuant to a plan of reorganization or upon the dissolution or
liquidation of the Company, and which are subordinate to the payment of all
Senior Indebtedness (or securities substituted therefor) then outstanding; and
provided, further, that the provisions of this clause (i) shall not apply to a
liquidation, dissolution, or other winding up made in connection with a merger,
consolidation, sale, lease, transfer or other disposal not prohibited by
Section 11.01 of this Indenture and (ii) in the event that pursuant to Article
Six of this Indenture any Debt Security of any series is declared due and
payable because of the occurrence of an Event of Default (under circumstances
when the provisions
of the foregoing clause (i) shall not be applicable), the Holders of the Debt Securities of such series shall be entitled to payment from the Company only after there shall have been payment in full on the Senior Indebtedness outstanding at the time such Debt Security so becomes due and payable because of such Event of Default, or such payment shall have been provided for.
In the event that, notwithstanding the provisions of this Article Fifteen, the Trustee or any Holders of Debt Securities shall receive any payment or distribution on the Debt Securities that because of this Article Fifteen should not have been made to them, then such payment shall be held in trust for the benefit of, and shall be paid over and delivered to, the holders of the Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any such Senior Indebtedness may have been issued, pro rata as their respective interests may appear, for application to the pro rata payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
No present or future holder of Senior Indebtedness shall be prejudiced in his right to enforce the subordination of the Debt Securities by any act or failure to act on the part of the Company. Each Holder of Debt Securities by his acceptance thereof authorizes the Trustee in his behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article Fifteen and appoints the Trustee his attorney-in-fact for any and all such purposes.
Nothing in this Section 15.01 shall apply to claims of, or payments to, the Trustee under or pursuant to the provisions of Section 7.05.
SECTION 15.02. TRUSTEE MAY RELY ON CERTIFICATE OF LIQUIDATING AGENT. The Company shall give prompt written notice to the Trustee of any dissolution, winding up, liquidation or reorganization of the Company within the meaning of this Article Fifteen, and shall also give prompt written notice to the Trustee of any event which pursuant to Section 15.01 would prevent payment by the Company on account of the principal of or premium, if any, or interest on the Debt Securities. Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee, subject to the requirements of Section 315 of the Trust Indenture Act of 1939, shall be entitled to rely upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Debt Securities, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.
SECTION 15.03. COMPANY OBLIGATION TO PAY UNCONDITIONAL. The provisions of this Article Fifteen are solely for the purpose of defining the relative rights of the holders of Senior Indebtedness on the one hand, and the Holders of the Debt Securities on the other hand, and nothing contained in this Article Fifteen or elsewhere in this Indenture, or in the Debt Securities, shall impair, as between the Company and the Holder of any Debt Security, the obligation of the Company, which is unconditional and absolute, to pay to the Holder thereof the principal of, premium, if any, and interest on the Debt Securities in accordance with their terms and the terms of this Indenture, nor shall anything herein or therein prevent the Trustee or the Holder of any Debt Security from exercising all remedies otherwise permitted by applicable law or hereunder or thereunder upon the occurrence of an Event of Default, subject to the rights, if any, under this Article Fifteen of holders of Senior Indebtedness to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Debt Securities.
SECTION 15.04. NOTICE TO TRUSTEE OF EFFECTUATION OF SUBORDINATION. Notwithstanding any of the provisions of this Article Fifteen or any other provision of this Indenture, neither the Trustee nor any paying agent (if the Company is not acting as its own paying agent) shall at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of moneys to or by the Trustee or any such paying agent, unless and until the Trustee or such paying agent, as the case may be, shall have
received written notice thereof from the Company or from one or more holders of Senior Indebtedness or from any trustee therefor or representative thereof; and, prior to the receipt of any such written notice, any paying agent and the Trustee, subject to the requirements of Section 315 of the Trust Indenture Act of 1939, shall be entitled in all respects to assume that no such facts exist; provided, however, that, if three business days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose including, without limitation, the payment of the principal of or premium, if any, or interest on any Debt Security, the Trustee or any paying agent, as the case may be, shall not have received with respect to such moneys the notice provided for in this Section 15.04, then, anything herein contained to the contrary notwithstanding, the Trustee or such paying agent shall have full power and authority to receive such moneys and to apply the same to the purpose for which they are received, and shall not be affected by any notice to the contrary, which may be received by it on or after such date.
The Trustee shall not have any fiduciary duty to any holder of Senior Indebtedness, and shall not be liable to any such holder if it shall pay over or distribute to the Holders of Debt Securities or the Company or any other person, money or assets to which any holder of Senior Indebtedness shall be entitled pursuant to this Article Fifteen or otherwise.
The Trustee shall, subject to the provisions of Section 7.01 and Section 315 of the Trust Indenture Act of 1939, be entitled to rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee or representative on behalf of such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to the provisions of this Article Fifteen, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held or represented by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person pursuant to the provisions of this Article Fifteen, and if such evidence is not furnished the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment.
SECTION 15.05. SENIOR INDEBTEDNESS HELD BY TRUSTEE. The Trustee shall be
entitled to all the rights set forth in this Article Fifteen in respect of any
Senior Indebtedness which may be at any time held by it to the same extent as
any other holder of Senior Indebtedness and, subject to the requirements of
Section 311 of the Trust Indenture Act of 1939, nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
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 , 1996.
MCDONALD'S CORPORATION
By __________________________________
Title:
[Corporate Seal]
Attest:
By __________________________________
Title:
FIRST UNION NATIONAL BANK
By __________________________________
Title:
[Corporate Seal]
Attest:
By __________________________________
Title:
State of Illinois ^^ss:
County of DuPage ^^
On this day of , 1996, before me personally came , to me personally known, who, being by me duly sworn, did depose and say that he is of McDonald's Corporation, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
Commonwealth of Pennsylvania ^^ ss:
County of ^^
On this day of , 1996, before me personally came , to me personally known, who, being by me duly sworn, did depose and say that he is of First Union National Bank, one of the entities described in and which executed the above instrument; that he knows the corporate seal of said national banking association; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said national banking association, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
EXHIBIT A
[FORM OF SUBORDINATED NOTE]
MCDONALD'S CORPORATION
[ADD APPLICABLE LEGENDS]
SUBORDINATED NOTE DUE
NO.............. [SPECIFY AMOUNT AND CURRENCY]
McDONALD'S CORPORATION, a corporation organized and existing under the laws
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of the State of Delaware (hereinafter called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to the Person in whose name this Note is registered or registered assigns, the principal sum of [SPECIFY AMOUNT AND CURRENCY] on and to pay interest thereon from or from the most recent interest payment date to which interest has been paid or duly provided for, [semi-annually] on [and ], in each year, [at the rate of % per annum] or [a rate determined by (specify method) until the principal hereof is paid or such payment is duly provided for. The interest so payable and punctually paid or duly provided for, on any interest payment date will, as provided in said Indenture, be paid to the Person in whose name this Note is registered at the close of business on the record date for such interest, which shall be the day, whether or not a business day, of the calendar month next preceding an interest payment date. Payment of the principal of (and premium, if any, on) and interest on this Note will be made at the designated office or agency of the Company maintained for such purpose in , in [SPECIFY CURRENCY] or, at the option of the Company interest so payable may be paid by check to the order of said Holder mailed to his address appearing on the Debt Security register. Any interest not so punctually paid or duly provided for shall be payable as provided in the Indenture.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth in this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof (or by an Authenticating Agent, as provided in the Indenture) by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, McDonald's Corporation has caused this Instrument to be signed in its corporate name by its Chairman of the Board or its President or one of its Vice Presidents manually or in facsimile and a facsimile of its corporate seal to be imprinted hereon and attested by the manual or facsimile signature of its Secretary or one of its Assistant Secretaries.
Dated: McDonald's Corporation
By __________________________________
Attest:
- -------------------------------------
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CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein provided for in the within-mentioned Indenture.
By __________________________________ Authorized Representative
[FORM OF REVERSE OF SUBORDINATED NOTE]
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness of the Company (herein called "Debt Securities") of a series hereinafter specified, all issued and to be issued under an Indenture dated as of , 1996 (herein called the "Indenture"), between the Company and First Union National Bank, as Trustee (herein called the "Trustee", which term includes any successor Trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Debt Securities and the terms upon which the Debt Securities are, and are to be, authenticated and delivered. The Debt Securities may be issued in one or more series, which different series may be issued in various currencies, various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Note is one of a series of the Company designated as its Subordinated Notes due (herein called the "Notes"), limited in aggregate principal amount to [SPECIFY AMOUNT AND CURRENCY].
[The Notes may be redeemed, at the option of the Company, as a whole or from time to time in part, on any date on or after and prior to maturity, upon mailing a notice of such redemption not less than 30 nor more than 60 days prior to the date fixed for redemption to the Holders of Notes to be redeemed, as provided in the Indenture, at % of the principal amount together with accrued interest to the date fixed for redemption.]
[In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
If an Event of Default shall occur with respect to the Notes, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The indebtedness evidenced by this Note is, to the extent and the manner provided in the Indenture, subordinate in right of payment to the prior payment in full of all Senior Indebtedness of the Company. Each Holder of this Note, by accepting the same, agrees to and shall be bound by such provisions of the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than 66 2/3% in aggregate principal amount of each series of the Debt Securities at the time outstanding (as defined in the Indenture) to be affected (each series voting as a class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Debt Securities of all such series; provided, however, that no such supplemental indenture shall, among other things, (i) extend the fixed maturity of any Debt Security, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount or premium if any, thereon or make the principal thereof, or premium, if any, or interest, if any, thereon payable in any coin or currency other than that hereinabove provided, without the consent of the Holder of each Debt Security so affected or reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon acceleration of maturity thereof, or (ii) reduce the aforesaid percentage of Debt Securities the Holders of which are required to consent to any such supplemental indenture, without the
consent of the Holders of each Debt Security so affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding, as defined in the Indenture, on behalf of the Holders of all the Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note or upon any Note issued upon the transfer hereof or in exchange therefor or in lieu hereof.
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 interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Debt Security register of the Company, upon surrender of this Note for transfer at the office or agency as may be designated or maintained by the Company for such purpose in , duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee, duly executed by the 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, will be issued to the designated transferee or transferees.
The Notes are issuable in denominations of [SPECIFY AMOUNT AND CURRENCY] and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Note is exchangeable for a like aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering the same.
No service charge will be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the interest or premium, if any, on this Note or for any claim based hereon or otherwise in any manner in respect hereof, or in respect of the Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
EXHIBIT 5
OCTOBER 15, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, DC 20549
Re:
McDonald's Corporation
Registration Statement on Form S-3
Dear Ladies and Gentlemen:
In my capacity as Vice President, Associate General Counsel and Secretary of McDonald's Corporation (the "Company"), a Delaware corporation, I have supervised and participated in the legal proceedings and matters relating to the registration under the Securities Act of 1933, as amended (the "Securities Act") of $1,000,000,000 in proposed maximum aggregate offering price of Debt Securities to be issued under a Senior Debt Securities Indenture or a Subordinated Debt Securities Indenture (the "Indentures"), as supplemented, between the Company and First Union National Bank, as trustee (the "Trustee"), all as more fully described in the registration statement on Form S-3 to which this opinion is an exhibit (the "Registration Statement").
I am an attorney licensed to practice law in the State of Illinois and my opinion is expressly limited to the laws of the State of Illinois, the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
I advise you that in my opinion:
1. The Company is a corporation duly organized and existing under and by virtue of the laws of the State of Delaware and has adequate corporate powers to own and operate its property and to transact the business in which it is engaged.
2. When (a) the Registration Statement has become effective under the Securities Act, and provided no stop order shall have been issued by the Securities and Exchange Commission relating thereto, and (b) the Debt Securities are qualified for sale (or exempt) under the securities laws of the states in which offered for sale, then upon the execution of the Indentures, any indenture or indentures supplemental thereto, and the Underwriting Agreement and the issuance and sale of the Debt Securities in conformance with the provisions of the applicable Indenture, as supplemented, and the Underwriting Agreement, the Debt Securities will be, when sold, duly authorized, legally issued, fully paid and non-assessable obligations of the Company, entitled to all of the benefits of the applicable Indenture, as supplemented, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditor's rights generally and by the effect of general principles of equity, regardless of whether enforceability is considered in a proceeding at law or in equity.
I am aware that I am named in the Registration Statement as counsel for the Company and hereby consent to such use of my name.
Very truly yours,
/s/ Gloria Santona ------------------------------------- Gloria Santona |
EXHIBIT 23(A)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of McDonald's Corporation for the registration of $1,000,000,000 Debt Securities and to the incorporation by reference therein of our report dated January 25, 1996, with respect to the consolidated financial statements of McDonald's Corporation included in the Company's Annual Report on Form 10-K for the year ended December 31, 1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG
Chicago, Illinois
October 15, 1996
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) ___
FIRST UNION NATIONAL BANK
(Exact Name of Trustee as Specified in its Charter)
22-1147033
(I.R.S. Employer Identification No.)
101 NORTHSIDE PLAZA, ELKTON, MARYLAND
(Address of Principal Executive Offices)
21921
(Zip Code)
FIRST UNION NATIONAL BANK
123 SOUTH BROAD STREET
PHILADELPHIA, PA 19109
ATTENTION: CORPORATE TRUST ADMINISTRATION
(215) 985-6000
(Name, address and telephone number of Agent for Service)
McDONALD'S CORPORATION
(Exact Name of Obligor as Specified in its Charter)
DELAWARE
(State or other jurisdiction of Incorporation or Organization)
36-2361282
(I.R.S. Employer Identification No.)
ONE McDONALD'S PLAZA, OAK BROOK, ILLINOIS
(Address of Principal Executive Offices)
60521
(Zip Code)
DEBT SECURITIES
Application relates to all securiuties registered pursuant to the delayed offering registration statement
(Title of Indenture Securities)
1. General Information.
Furnish the following information as to the trustee:
a) Name and address of each examining or supervisory authority to which it is
subject:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank (3rd District)
Philadelphia, Pennsylvania 19106
Federal Deposit Insurance Corporation Washington, D.C. 20429
b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such affiliation.
None.
3. Voting Securities of the trustee.
Furnish the following information as to each class of voting securities of the trustee:
Not applicable - see answer to Item 13.
4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Obligor are outstanding, furnish the following information:
Not applicable - see answer to Item 13.
5. Interlocking directorates and similar relationships with the obligor or underwriters.
If the trustee or any of the directors or executive officers of the trustee is a director, officer, partner, employee, appointee, or representative of the obligor or of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection.
Not applicable - see answer to Item 13.
6. Voting securities of the trustee owned by the obligor or its officials.
Furnish the following information as to the voting securities of the trustee owned beneficially by the obligor and each director, partner, and executive officer of the obligor:
Not applicable - see answer to Item 13.
7. Voting securities of the trustee owned by underwriters or their officials.
Furnish the following information as to the voting securities of the trustee owned beneficially by each underwriter for the obligor and each director, partner, and executive officer of each such underwriter:
Not applicable - see answer to Item 13.
8. Securities of the obligor owned or held by the trustee.
Furnish the following information as to securities of the obligor owned beneficially or held as collateral security for obligations in default by the trustee:
Not applicable - see answer to Item 13.
9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for obligations in default any securities of an underwriter for the obligor, furnish the following information as to each class of securities of such underwriter any of which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of voting securities of certain affiliates or security holders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting stock of the obligor or
(2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person:
Not applicable - see answer to Item 13.
11. Ownership or holdings by the trustee of any securities of a person owning 50 percent or more of the voting securities of the obligor.
If the trustee owns beneficially or holds as collateral security for obligations in default any securities of a person who, to the knowledge of the trustee, owns 50 percent or more of the voting securities of the obligor, furnish the following information as to each class of securities of such person any of which are so owned or held by the trustee:
Not applicable - see answer to Item 13.
12. Indebtedness of the obligor to the trustee.
Except as noted in the instructions, if the obligor is indebted
to
the trustee, furnish the following information:
Not applicable - see answer to Item 13.
13. Defaults by the obligor.
(a) State whether there is or has been a default with respect to the securities under this indenture. explain the nature of any such default.
None.
(b) If the trustee is a trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the obligor are outstanding, or is trustee for more than one outstanding series of securities under the indenture, state whether there has been a default under any such indenture or series, identify the indenture or series affected, and explain the nature of any such default.
None.
14. Affiliations with the underwriters.
If any underwriter is an affiliate of the trustee, describe each such affiliation.
Not applicable - see answer to Item 13.
15. Foreign trustee.
Identify the order or rule pursuant to which the trustee is authorized to act as sole trustee under indentures qualified or to be qualified under the act.
Not applicable - trustee is a national banking association organized under the laws of the United States.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. Copy of Articles of Association of the trustee as now in effect.**
- --
2. Copy of the Certificate of the Comptroller of the Currency date dated
- -- January 11, 1994, evidencing the authority of the trustee to transact
business.*
3. Copy of the Certification of Fiduciary Powers of the trustee by the
- -- Office of the Comptroller of the Currency dated July 24, 1992.*
4. Copy of existing by-laws of the trustee.**
- --
5. Copy of each indenture referred to in Item 4, if the obligor is in
- -- default.
-- Not Applicable.
X 6. Consent of the trustee required by Section 321(b) of the Act.
- --
X 7. Copy of report of condition of the trustee at the close of business
- -- on June 30, 1996, published pursuant to the requirements of its
supervising authority.
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__ 8. Copy of any order pursuant to which the foreign trustee is authorized to
act as sole trustee under indentures qualified or to be qualified under
the Act.
- Not Applicable
__ 9. Consent to service of process required of foreign trustees pursuant to
Rule 10a-4 under the Act.
- Not Applicable
_____________________
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*Previously filed with the Securities Exchange Commission on February 11, 1994 as an Exhibit to Form T-1 in connection with Registration Statement Number 22-73340 and ** previously filed with the Securities Exchange Commission on March 6,1996 with Registration Statement Number 333-1102 and incorporated herein by reference
NOTE
The trustee disclaims responsibility for the accuracy or completeness of information contained in this Statement of Eligibility and Qualification not known to the trustee and not obtainable by it through reasonable investigation and as to which information it has obtained from the obligor and has had to rely or will obtain from the principal underwriters and will have to rely.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee, First Union National Bank, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility and Qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Philadelphia and Commonwealth of Pennsylvania, on the 2nd day of October, 1996.
FIRST UNION NATIONAL BANK
By: /s/ John H. Clapham
John H. Clapham
Vice President
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EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, and in connection with the proposed issue of McDonald`s Corporation, Debt Securities, First Union National Bank, hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/John H. Clapham
John H. Clapham
Vice President
Philadelphia, Pennsylvania
October 2, 1996
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REPORT OF CONDITION EXHIBIT 7
Consolidating domestic and foreign subsidiaries of the First Union National Bank of Elkton in the state of Maryland, at the close of business on June 30, 1996 published in response to call made by Comptroller of the Currency, under title 12, United States Code, Section 161. Charter Number 33869 Comptroller of the Currency Northeastern District.
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin............. 1,772,664
Interest-bearing balances...................................... 124,929
Securities....................................................... /////////
Hold-to-maturity securities.................................... 531,451
Available-for-sale securities.................................. 5,080,485
Federal funds sold and securities purchased under agreements //////////
to resell in domestic offices of the bank and of it //////////
Edge and Agreement subsidiaries, and in IBFs: //////////
Federal funds sold............................................. 26,481
Securities purchased under agreements to resell................ 223,204
Loans and lease financing receivables:
Loan and leases, net of unearned income......20,255,779
LESS: Allowance for loan and lease losses.......412,158
LESS: Allocated transfer risk reserve.................0
Loans and leases, net of unearned income, allowance, and
reserve........................................................ 19,843,621
Assets held in trading accounts.................................. 0
Premises and fixed assets (including capitalized leases)......... 390,936
Other real estate owned.......................................... 58,628
Investment in unconsolidated subsidiaries and associated //////////
companies...................................................... 26,343
Customer's liability to this bank on acceptances outstanding..... 51,547
Intangible assets................................................ 747,578
Other assets..................................................... 798,531
Total assets..................................................... 29,676,398
LIABILITIES
Deposits:
In domestic offices......................................... 24,056,990
Noninterest-bearing......................4,453,778
Interest-bearing........................19,603,212
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................. 308,954
Noninterest-bearing..............................0
Interest-bearing...........................308,954
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs
Federal fund purchased...................................... 389,394
Securities sold under agreements to repurchase.............. 820,273
Demand notes issued to the U.S. Treasury......................... 113,120
Trading liabilities.............................................. 0
Other borrowed money:............................................ /////////
With original maturity of one year or less.................. 6,829
With original maturity of more than one year................ 10,338
Mortgage indebtedness and obligations under capitalized leases 16,467
Bank's liability on acceptances executed and outstanding......... 51,827
Subordinated notes and debentures................................ 175,000
Other liabilities................................................ 708,654
Total liabilities................................................ 26,657,846
Limited-life preferred stock and related surplus................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................... 160,540
Common Stock..................................................... 452,156
Surplus.......................................................... 1,300,080
Undivided profits and capital reserves........................... 1,150,698
Net unrealized holding gains (losses) on available-for-sale /////////
securities..................................................... (44,922)
Cumulative foreign currency translation adjustments.............. 0
Total equity capital............................................. 3,018,552
Total liabilities, limited-life preferred stock and equity....... /////////
capital........................................................ 29,676,398
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