EXHIBIT 4.1(a)
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XXXXXXX & XXXX FINANCIAL, INC.
AND
CHASE MANHATTAN TRUST COMPANY
NATIONAL ASSOCIATION
AS TRUSTEE
INDENTURE
DATED AS OF JANUARY 18, 2001
SENIOR DEBT SECURITIES
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS......................................................1
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.............................9
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................10
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES...................................11
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY...........................13
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.......................................14
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT...............................15
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS........................15
SECTION 1.9 SUCCESSORS AND ASSIGNS..........................................15
SECTION 1.10 SEPARABILITY CLAUSE.............................................15
SECTION 1.11 BENEFITS OF INDENTURE...........................................15
SECTION 1.12 GOVERNING LAW. .................................................15
SECTION 1.13 LEGAL HOLIDAYS..................................................16
SECTION 1.14 INDENTURE AND SECURITIES SOLELY CORPORATE
OBLIGATIONS. ...................................................16
SECTION 1.15 INDENTURE MAY BE EXECUTED IN COUNTERPARTS.......................16
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.................................................17
SECTION 2.2 FORM OF LEGEND FOR GLOBAL SECURITIES............................17
SECTION 2.3 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION..................................................18
SECTION 2.4 FORM OF CONVERSION NOTICE.......................................18
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES............................20
SECTION 3.2 DENOMINATIONS...................................................23
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY
AND DATING......................................................24
SECTION 3.4 TEMPORARY SECURITIES............................................26
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND
EXCHANGE........................................................26
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES......................................................29
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.......................................................30
SECTION 3.8 PERSONS DEEMED OWNERS...........................................31
SECTION 3.9 CANCELLATION....................................................32
SECTION 3.10 COMPUTATION OF INTEREST.........................................32
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.........................32
SECTION 4.2 APPLICATION OF TRUST MONEY......................................34
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT...............................................34
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.......................................................36
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. ........................................37
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM................................38
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES. ......................................39
SECTION 5.6 APPLICATION OF MONEY COLLECTED..................................39
SECTION 5.7 LIMITATION ON SUITS.............................................40
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST AND
TO CONVERT......................................................40
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES..............................41
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE..................................41
SECTION 5.11 DELAY OR OMISSION NOT WAIVER....................................41
SECTION 5.12 CONTROL BY HOLDERS..............................................42
SECTION 5.13 WAIVER OF PAST DEFAULTS.........................................42
SECTION 5.14 UNDERTAKING FOR COSTS...........................................43
SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.........................43
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.............................43
SECTION 6.2 NOTICE OF DEFAULTS..............................................44
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.......................................44
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES......................................................46
SECTION 6.5 MAY HOLD SECURITIES AND ACT AS TRUSTEE
UNDER OTHER INDENTURES..........................................46
SECTION 6.6 MONEY HELD IN TRUST.............................................46
SECTION 6.7 COMPENSATION AND REIMBURSEMENT..................................47
SECTION 6.8 CONFLICTING INTERESTS...........................................48
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................48
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.......................................................48
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................50
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS..........................................51
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.........................................................52
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.............................52
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS............................................54
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS......................................................55
SECTION 7.3 REPORTS BY TRUSTEE..............................................55
SECTION 7.4 REPORTS BY COMPANY..............................................55
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS...................................................56
SECTION 8.2 SUCCESSOR SUBSTITUTED...........................................57
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS......................................................58
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.........................................................60
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES............................61
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES...............................61
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.............................62
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES......................................................62
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST......................62
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.................................62
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST........................................................63
SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.............................64
SECTION 10.5 EXISTENCE.......................................................64
SECTION 10.6 WAIVER OF CERTAIN COVENANTS.....................................65
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE........................................65
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE...........................65
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. ......................................................66
SECTION 11.4 NOTICE OF REDEMPTION............................................67
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.....................................68
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE...........................68
SECTION 11.7 SECURITIES REDEEMED IN PART.....................................68
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE........................................69
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. ....................................................69
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.......................70
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.............................................70
SECTION 13.2 DEFEASANCE AND DISCHARGE........................................70
SECTION 13.3 COVENANT DEFEASANCE.............................................71
SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE......................................................72
SECTION 13.5 DEPOSITED MONEY AND US GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS
PROVISIONS......................................................74
SECTION 13.6 REINSTATEMENT...................................................75
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 APPLICABILITY OF ARTICLE........................................76
SECTION 14.2 EXERCISE OF CONVERSION PRIVILEGE................................76
SECTION 14.3 NO FRACTIONAL SHARES............................................77
SECTION 14.4 ADJUSTMENT OF CONVERSION PRICE..................................78
SECTION 14.5 NOTICE OF CERTAIN CORPORATE ACTIONS.............................78
SECTION 14.6 RESERVATION OF SHARES OF COMMON STOCK...........................79
SECTION 14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION........................80
SECTION 14.8 NONASSESSABILITY................................................80
SECTION 14.9 PROVISION IN CASE OF CONSOLIDATION, MERGER
OR SALE OF ASSETS...............................................80
SECTION 14.10 DUTIES OF TRUSTEE REGARDING CONVERSION..........................81
SECTION 14.11 REPAYMENT OF CERTAIN FUNDS UPON
CONVERSION......................................................82
INDENTURE, dated as of January 18, 2001, between Xxxxxxx
& Xxxx Financial, Inc., a corporation duly organized and existing under the
State of Delaware (herein called the "Company"), having its principal
executive office at 0000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000, and
Chase Manhattan Trust Company, National Association, Chase Financial Tower,
000 X. Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as provided in
this Indenture.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof appertaining, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) unless the context otherwise requires, any
reference to an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Indenture; and
(5) 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.
"Act" when used with respect to any Holder, has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means either the board of directors
of the Company or any duly authorized committee of that board empowered to
act for it with respect to this Indenture.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
State of New York or the state in which the Corporate Trust Office is
located or, when used with respect to any Place of Payment, in that Place
of Payment are authorized or obligated by law or executive order to close.
"Class A Common Stock" when used means the Company's
Class A Common Stock having a par value of $.01 each.
"Class B Common Stock" when used means the Company's
Class B Common Stock having a par value of $.01 each.
"Commission" means the Securities and Exchange
Commission, from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the
Company, including Class A Common Stock and Class B Common Stock, which has
no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company; provided,
however, subject to the provisions of Section 14.9, shares issuable upon
conversion of Securities shall include only shares of the class designated
as Common Stock of the Company at the date of this Indenture or shares of
any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which
are not subject to redemption by the Company; provided, further that if at
any time there shall be more than one such resulting class, the shares of
each such class then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the corporation named as the "Company" in
the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President or a Vice President,
and by its principal financial officer, its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means, initially, the corporate
trust office of the Trustee at Chase Financial Tower, 000 X. Xxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, Xxxx, 00000, Attention: Corporate Trust Department,
or such other office, designated by the Trustee by written notice to the
Company, at which at any particular time any duties and obligations imposed
on the Trustee hereunder are performed.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in
Section 13.3.
"Defaulted Interest" has the meaning specified in Section
3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities as contemplated by
Section 3.1.
"Event of Default" has the meaning specified in Section
5.1.
"Exchange Act" means the Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from time to
time.
"Expiration Date" has the meaning specified in Section
1.4.
"Global Security" means a Security that evidences all or
part of the Securities of any series and bears the legend set forth in
Section 2.2 (or such legend as may be specified as contemplated by Section
3.1 for such Securities).
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed
and as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as
contemplated by Section 3.1; provided, however, that if at any time more
than one Person is acting as Trustee under this Indenture due to the
appointment of one or more separate Trustees for any one or more separate
series of Securities, "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee
established as contemplated by Section 3.1, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted
by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee, but to which such
person, as such Trustee, was not a party; provided, further that in the
event that this Indenture is supplemented or amended by one or more
indentures supplemental hereto which are only applicable to certain series
of Securities, the term "Indenture" for a particular series of Securities
shall only include the supplemental indentures applicable thereto.
"interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Investment Company Act" means the Investment Company Act
of 1940 and any statute successor thereto, in each case as amended from
time to time.
"Maturity" when used with respect to any Security, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 5.1(4).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by the principal financial officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for, or an employee of, the Company, and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Outstanding" when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except
(1) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(3) Securities as to which Defeasance has been
effected pursuant to Section 13.2; and
(4) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable
as of such date upon acceleration of the Maturity thereof to such date
pursuant to Section 5.2, (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section
3.1, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date
in the manner provided as contemplated by Section 3.1, of the principal
amount of such Security (or, in the case of a Security described in Clause
(A) or (B) above, of the amount determined as provided in such Clause), and
(D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the
Securities of any series, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable
as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Record Date" means any Regular Record Date or Special
Record Date.
"Redemption Date" when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price" when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.1.
"Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security
or any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any
corporation or trust of which a majority of the outstanding voting
securities is at the time, and (ii) any partnership of which a majority of
the equity capital or profit interest is at the time, owned, directly or
indirectly, by the Company, by one or more other Subsidiaries or by the
Company and one or more Subsidiaries. For the purposes of this definition,
"voting securities" means securities which ordinarily has voting power for
the election of directors, whether at all times or only so long as no
senior class of securities has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 13.4.
"Vice President" when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act and this Indenture. Each such
certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements
of the Trust Indenture Act and any other requirements set forth in this
Indenture.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not,
be consolidated and form one instrument.
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to
be given, made or taken by Holders shall be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. The Trustee shall promptly
deliver to the Company copies of all such instrument or instruments
delivered to the Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his or her authority.
The fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the
Security Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization,
direction, vote, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of
Securities of such series, provided that the Company may not set
a record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration, request
or direction referred to in the next paragraph. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain
Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration
Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and
the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 1.6.
The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of Default, (ii)
any declaration of acceleration referred to in Section 5.2, (iii) any
request to institute proceedings referred to in Section 5.7(2), (iv) any
direction referred to in Section 5.12 or (v) any other purpose required
under this Indenture, in each case with respect to Securities of such
series. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any
Person be canceled and of no effect), and nothing in this paragraph shall
be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 1.6.
With respect to any record date set pursuant to this
Section, the party hereto which sets such record dates may designate any
day as the "Expiration Date" and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is
given to the other party hereto in writing, and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6,
on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration
Date as provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable
record date.
Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of such
principal amount.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, and shall be deemed
given when mailed by first class mail, postage prepaid, or by any
reputable same or next day delivery service, or transmitted by any
telegraphic, facsimile or similar service, provided that oral
confirmation of receipt shall have been received or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing
to or with the Company at its principal office specified in the
first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company,
Attention: Chief Financial Officer, and shall be deemed given when
mailed by first class mail, postage prepaid, or by any reputable
same or next day delivery service, or transmitted by any
telegraphic, facsimile or similar service, provided that oral
confirmation of receipt shall have been received.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
or delivered by hand or overnight courier to each Holder, as of the
applicable record date, affected by such event, at its address as it
appears in the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving
of such notice. Neither the failure to mail or deliver by hand or overnight
courier any such notice, nor any defect in any such notice so mailed or
delivered by hand or overnight courier, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
SECTION 1.7 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act which is required under such
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.9 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the
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 1.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO SUCH STATE'S CONFLICTS OF LAWS PRINCIPLES.
SECTION 1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security or the last date on which a Holder
has the right to convert a Security at a particular conversion price shall
not be a Business Day at any Place of Payment, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a
provision of any Security which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and
premium, if any) or, if applicable to a particular series of Securities,
conversion need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, at the Stated Maturity or on such last day for conversion,
as the case may be.
SECTION 1.14 INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or
premium, if any, or interest on any 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 Security, or because of the creation
of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, or director or
subsidiary, 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 Securities.
SECTION 1.15 INDENTURE MAY BE EXECUTED IN COUNTERPARTS.
This instrument 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 instruments.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities of each series shall be in substantially
the form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution
thereof. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 3.3 for the authentication and
delivery of such Securities. Any such Board Resolution or record of such
action shall have attached thereto a true and correct copy of the form of
Security referred to therein approved by or pursuant to such Board
Resolution.
SECTION 2.2 FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 3.1
for the Securities evidenced thereby, every Global Security authenticated
and delivered hereunder shall bear a legend in substantially the following
form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 2.3 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
CHASE MANHATTAN TRUST
COMPANY, NATIONAL ASSOCIATION
As Trustee
By:--------------------------------
Authorized Officer
SECTION 2.4 FORM OF CONVERSION NOTICE.
Conversion notices shall be in substantially the
following form:
To Xxxxxxx & Xxxx, Inc.:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of
Common Stock of the Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. If this Notice is being
delivered on a date after the close of business on a Regular Record Date
and prior to the opening of business on the related Interest Payment Date
(unless this Security or the portion thereof being converted has been
called for redemption on a Redemption Date during the period beginning at
the close of business on a Regular Record Date and ending at the opening of
business on the first Business Day after the next succeeding Interest
Payment Date, or if such Interest Payment Date is not a Business Day, the
second such Business Day), this Notice is accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be
converted. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of $1,000, if less than all)
U.S. $_________
Dated: ___________
Signature(s) must be guaranteed by an eligible
guarantor institution (banks, stock brokers,
savings and loan associations and credit
unions with membership in an approved
signature guarantee medallion program)
pursuant to Securities and Exchange Commission
Rule 17Ad-15.
-----------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered Holder.
------------------------- --------------------------------------
(Name) Social Security or Other Taxpayer
Identification Number
-------------------------
(Address)
--------------------------
Please print Name and Address
(including zip code number)
[The above conversion notice is to be modified, as appropriate, for
conversion into other securities or property of the Company.]
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, subject to
Section 3.3, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal of any
Securities of the series is payable;
(5) the rate or rates at which any Securities of the
series shall bear interest, if any, the date or dates from which
any such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and
any premium and interest on any Securities of the series shall be
payable;
(7) the period or periods within which, the price or
prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than by a Board Resolution,
the manner in which any election by the Company to redeem the
Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of the Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, 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 any
Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States
of America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of
"Outstanding" in Section 1.1;
(12) if the principal of or any premium or interest
on any Securities of the series is to be payable, at the election
of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount
thereof, the portion of the principal amount of any Securities of
the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(14) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the
Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the
series, in whole or any specified part, shall be defeasible
pursuant to Section 13.2 or Section 13.3 or both such Sections and,
if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, the terms of any right to convert
Securities of the series into shares of Common Stock of the Company
or other securities or property;
(17) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends which
shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.2 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition to or change in the Events of
Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 5.2;
(19) any addition to or change in the covenants set
forth in Article 10 which applies to Securities of the series; and
(20) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and (subject to
Section 3.3) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the
series.
SECTION 3.2 DENOMINATIONS.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as shall be
specified as contemplated by Section 3.1. In the absence of any such
specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its Chief
Executive Officer, its principal financial officer, its President or one of
its Vice Presidents, attested by its Treasurer, Secretary or one of its
Assistant Treasurers, Assistant Secretaries, or Vice Presidents (other than
any Vice President whose execution of the Securities is being attested to).
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established by or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, a copy of such Board Resolution, Officers'
Certificate, or supplemental indenture setting forth the terms of the
Securities setting forth the terms of the series and an Opinion of Counsel,
with such Opinion of Counsel stating,
(1) if the form of such Securities has been
established by or pursuant to Board Resolution, Officers'
Certificate, or supplemental indenture as permitted by Section 2.1,
that such form has been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to Board Resolution, Officers'
Certificate, or supplemental indenture as permitted by Section 3.1,
that such terms have been established in conformity with the
provisions of this Indenture;
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(4) if all Securities of a series are not to be
originally issued at one time, and the Board Resolution, Officer's
Certificate, or supplemental indenture pursuant to which such
Securities are issued does not require an Officer's Certificate
otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each subsequent
Security of such series, that it will not be necessary for the
Company to deliver or cause to be delivered an Officer's
Certificate otherwise required pursuant to Section 3.1 or a Company
Order or an Opinion of Counsel otherwise required pursuant to
Section 3.1 at or prior to the authentication of
subsequently-issued Securities of such series.
If such form or terms have been so established, the
Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued and the
Company Order so provides.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Neither the Company nor the Trustee shall have any
responsibility for any defect in the CUSIP number that appears on any
Security, check, advice of payment or redemption notice, and any such
document may contain a statement to the effect that CUSIP numbers have been
assigned by an independent service for convenience of reference and that
neither the Company nor the Trustee shall be liable for any inaccuracy in
such numbers.
SECTION 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any
Security of a series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by the Holder thereof or its attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be
required (A) to issue, register the transfer of or exchange any Securities
of that series (or of that series and specified tenor, as the case may be)
during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 11.3 and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below
shall apply only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security
or (C) there shall exist such circumstances, if any, in addition to
or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 3.1.
(3) Subject to Clause (2) above, any exchange of a
Global Security for other Securities may be made in whole or in
part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section, Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and proof of ownership of that Security and (ii) such
security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company and the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Company and their agents and counsel) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section
3.1 with respect to any series of Securities, interest on any Security
which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to
be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given
to each Holder of Securities of such series in the manner set forth
in Section 1.6, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by and
acceptable to the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Subject to the provisions of Section 14.2, in the case of
any Security (or any part thereof) which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security the principal of (or premium, if any, on) which
shall become due and payable, whether at Stated Maturity or by declaration
of acceleration prior to such Interest Payment Date), interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Person in
whose name that Security (or any one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence or in
Section 14.2, in the case of any Security (or any part thereof) which is
converted, interest whose Stated Maturity is after the date of conversion
of such Security (or such part thereof) shall not be payable.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 3.7) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order, or if no such
directions are set forth therein, as the Trustee determines in its
discretion.
SECTION 3.10 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section
3.1 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated
and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.6 and (ii) Securities for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Trustee or
the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
In addition to the forgoing, those provisions relating to
the maturity of Securities, interest payments and dates thereof, the tender
of Securities for purchase and the Trustee's remedies with respect thereto,
the exchange, transfer and registration of Securities, the replacement and
cancellation of Securities, the holding of moneys in trust and the duties
of the Trustee in connection with all of the foregoing shall remain in full
force and effect and shall be binding upon the Trustee, the Holders of the
Securities and the Company notwithstanding the release and discharge of
this Indenture until the Securities have been actually paid in full.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of
Section 10.3, all money deposited with the Trustee pursuant to Section 4.1
shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto under
the terms of this Indenture, of the principal and any premium and interest
for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that series;
or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any reapplicable Federal
or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action;
or
(7) any other Event of Default provided with respect
to Securities of that series.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Section 5.1(5) or 5.1(6)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee if indemnified as provided in Section 6.3(5), or the
Holders of not less than 25% in principal amount of the Outstanding
Securities of that series, may declare the principal amount of all the
Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms thereof) to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If
an Event of Default specified in Section 5.1(5) or 5.1(6) with respect to
Securities of any series at the time Outstanding occurs, the principal
amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and
payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 5.13. No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act, this Indenture or otherwise at law or in equity in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or
to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding; provided, however, that the Trustee may, on behalf of
the Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium, if any, and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium,
if any, and interest, respectively; and
THIRD: The balance, if any, to the Company or any other
Person or Persons entitled thereto.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding
Securities of that series; it being understood and intended that no
one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date), to convert such Securities in accordance with Article
14 to the extent that such right to convert is applicable to such Security
and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee (subject to the limitations contained in this Indenture) or by
the Holders, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture and the Trustee shall not have
determined that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other
series, not taking part in such direction and indemnification is
provided to the Trustee under Section 6.3(5); and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction
or this Indenture.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except
(1) a default in the payment of the principal of or
any premium or interest on any Security of such series, or
(2) to the extent such right is applicable to such
Security, a failure by the Company on request to convert any
Security into Common Stock; or
(3) in respect of a covenant or provision hereof
which under Article 9 cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for the enforcement of the right
to convert any Security in accordance with Article 14.
SECTION 5.15 WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. No implied covenants or obligations shall be read
into this Indenture against the Trustee. The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith and
reasonably believed by it to be within the discretion or power conferred
upon it, or be responsible for the consequences of any error of judgment
reasonably made by it. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Company. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2 NOTICE OF DEFAULTS.
The Trustee shall not be required to take notice, and
shall not be deemed to have notice, of any default hereunder, except for
Events of Default described in paragraphs (1) and (2) of Section 5.1 unless
the Trustee shall be notified specifically of the default in a written
instrument or document delivered to it at its Corporate Trust Office by the
Company or by the Holders of at least 10% of the aggregate principal amount
of Securities then Outstanding. In the absence of delivery of notice
satisfying those requirements, the Trustee may assume conclusively that
there is no default, except as noted above. If a default occurs hereunder
with respect to Securities of any series of which the Trustee has notice,
the Trustee shall give the Holders of Securities of such series notice of
such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character
specified in Section 5.1(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is expressly required
by this Indenture to be delivered) is entitled to and may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture
at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to monitor the
Company, or analyze or review, or make any investigation into the
facts or matters stated in, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally
or by agent or attorney; and
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes
no representations as to the validity, sufficiency or priority of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES AND ACT AS TRUSTEE UNDER
OTHER INDENTURES.
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, and their Affiliates and any directors, officers,
employees or agents thereof, may become the owner or pledgee of Securities
and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
Subject to Sections 6.8 and 6.13, nothing in this
Indenture shall prohibit the Trustee from becoming and acting as trustee
under other indentures under which other securities, or certificates of
interest of participation in other securities, of the Company are
outstanding in the same manner as if it were not Trustee hereunder.
SECTION 6.6 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on
behalf of the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel),
(3) to indemnify and hold the Trustee and its
directors, officers, agents and employees (collectively the
"Indemnitees") harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties, and expenses,
including out-of-pocket and incidental expenses and legal fees
("Losses") that may be imposed on, incurred by, or asserted
against, the Indemnitees or any of them for following any
instructions or other directions upon which the Trustee is
authorized to rely pursuant to the terms of this Indenture; and
(4) to indemnify the Indemnitees for, and to hold
them harmless against, any Losses, to the extent incurred without
gross negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, or the Trustee's exercise or performance of any
of its powers or duties hereunder.
In no event shall the Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
The provisions of this Section 6.7 shall survive the termination
and discharge of this Indenture.
SECTION 6.8 CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture. To the extent permitted by such Act, the Trustee shall not
be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series, which may also be
Trustee hereunder for Securities of one or more other series. Each Trustee
shall be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has (or if the Trustee is a member of a bank holding
company system, its bank holding company has) a combined capital and
surplus of at least $50,000,000. If any such Person or bank holding company
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person or bank holding
company shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request therefor
by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities, or (B) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 6.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 6.11, the retiring
Trustee may petition, or any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities
of any series to all Holders of Securities of such series in the manner
provided in Section 1.6. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case
may be.
No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If and when the Trustee shall be or become a creditor of
the Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be reasonably
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having (or if the Authenticating Agent is a
member of a bank holding company system, its bank holding company has) a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent 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, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding
to the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may
at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be reasonably acceptable to the
Company and shall give notice of such appointment in the manner provided in
Section 1.6 to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for such
payments by the Company, subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is
made pursuant to this Section 6.14, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
As Trustee
By:------------------------------------
As Authenticating Agent
By:------------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee
(1) semi-annually, not later than 15 days after the
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities of each series as of such Regular Record Date, as the case
may be, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided that no such list need be furnished by the Company to the
Trustee so long as the Trustee is acting as Security Registrar.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than July 1 in
each calendar year, commencing with the first July 1 after the first
issuance of Securities pursuant to this Indenture.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
SECTION 7.4 REPORTS BY COMPANY.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to the
Trust Indenture Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
15(d) of the Exchange Act shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate with or merge into any
other Person (in a transaction in which the Company is not the surviving
corporation) or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or
merge into another Person (in a transaction in which the Company is
not the surviving corporation) or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, limited
liability company, partnership or trust, shall be organized and
validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be
performed or observed and the conversion rights shall be provided
for in accordance with Article 14, if applicable, or as otherwise
specified pursuant to Section 3.1, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the
Trustee, by the Person (if other than the Company) formed by such
consolidation or into which the Company shall have been merged or
by the Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company, or successive successions, and the assumption by any
such successor of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11; or
(9) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Article 14,
including providing for the conversion of the securities into any
security (other than the Common Stock of the Company) or property
of the Company; or
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (10) shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(11) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of Securities
pursuant to Articles Four and Thirteen, provided that any such
action shall not, in the determination of the Trustee, relying on
the Opinion of Counsel, adversely affect the interests of the
Holders of Securities of such series or any other series of
Securities in any material respect.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the
amount of the principal of an Original Issue Discount Security or
any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 5.13 or Section 10.6, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section
10.6, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11 and 9.1(8), or
(4) if applicable, make any change that adversely
affects the right to convert any security as provided in Article 14
or pursuant to Section 3.1 (except as permitted by Section 9.1(9))
or decrease the conversion rate or increase the conversion price of
any such security. A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of
the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall
be fully protected in relying upon, an Opinion of Counsel stating that (i)
the execution of such supplemental indenture is authorized or permitted by
this Indenture and does not violate this Indenture, (ii) the conditions
precedent for the execution and delivery of such supplemental indenture to
be performed or complied with by the Company have been performed or
complied with, and (iii) if applicable, the execution of such supplemental
indenture does not adversely affect the interests of the Holders of the
Securities in any material respect. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article
may, and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series
so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of
and any premium and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange,
where Securities of that series may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands. Unless
otherwise provided in a supplemental indenture or pursuant to Section 3.1
hereof, the Place of Payment for any series of Securities shall be the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each
due date of the principal of or any premium or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, on or prior to each due date of the
principal of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum
to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series
of Securities other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will (1)
comply with the provisions of the Trust Indenture Act applicable to it as a
Paying Agent and (2) during the continuance of any default by the Company
(or any other obligor upon the Securities of that series) in the making of
any payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of
or any premium or interest on any Security of any series and remaining
unclaimed for a period ending on the earlier of the date that is ten
Business Days prior to the date such money would escheat to the State or
two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and any and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease. All moneys held by
the Trustee and subject to this Section shall be held uninvested and
without liability for interest thereon.
SECTION 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge. The fiscal year of the Company currently ends on
December 31; and the Company will give the Trustee prompt written notice of
any change of its fiscal year.
SECTION 10.5 EXISTENCE.
Subject to Article 8, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence.
SECTION 10.6 WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section
3.1 for Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with
any term, provision or condition set forth in any covenant provided
pursuant to Section 3.1(19) or 9.1(2) for the benefit of the Holders of
such series if before the time for such compliance the Holders of at least
a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 3.1 for such
Securities) in accordance with this Article.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution or in another manner specified as
contemplated by Section 3.1 for such Securities. In case of any redemption
at the election of the Company of less than all the Securities of any
series (including any such redemption affecting only a single Security),
the Company shall, at least 45 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor
of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a specified tenor
are to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
by lot, whether by the Trustee or any Depositary, or in the Trustee's
discretion, on a pro-rata basis, provided that the unredeemed portion of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is
converted in part before termination of the conversion right with respect
to the portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding
for the purpose of such selection.
The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount
of the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 11.4 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the Securities to
be redeemed, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (including accrued interest,
if any),
(3) if less than all the Outstanding Securities of
any series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular
Security to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on
and after said date,
(5) the place or places where each such Security is
to be surrendered for payment of the Redemption Price,
(6) if applicable, the conversion price, the date on
which the right to convert the principal of the Securities or the
portions thereof to be redeemed will terminate, and the place or
places where such Securities may be surrendered for conversion, and
(7) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and
shall be irrevocable.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date.
If any Security called for redemption is converted, any
money deposited with the Trustee or with a Paying Agent or so segregated
and held in trust for the redemption of such Security shall (subject to the
right of any Holder of such Security to receive interest as provided in the
last paragraph of Section 3.7) be paid to the Company on Company Request,
or if then held by the Company, shall be discharged from such trust.
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 3.7.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and any premium
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided
for by the terms of any Securities 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 such Securities is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any
Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of
such Securities.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to any Securities of such series
required to be made pursuant to the terms of such Securities as and to the
extent provided for by the terms of such Securities; provided that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment
date for any Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for such Securities pursuant to the terms of such Securities,
the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days prior to
each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have
Section 13.2 or Section 13.3 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 3.1 as being
defeasible pursuant to such Section 13.2 or 13.3, in accordance with any
applicable requirements provided pursuant to Section 3.1 and upon
compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 3.1 for such Securities.
SECTION 13.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of Securities, as
the case may be, the Company shall be deemed to have been discharged from
its obligations with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise
terminated or discharged hereunder:
(1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section
13.4 and as more fully set forth in such Section,
payments in respect of the principal of and any premium
and interest on such Securities when payments are due,
(2) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3,
and, if applicable, Article 14,
(3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and
(4) this Article.
Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section
13.3 applied to such Securities.
SECTION 13.3 COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of Securities, as
the case may be:
(1) the Company shall be released from its
obligations under Section 10.6, and any covenants provided pursuant
to Section 3.1(19) or 9.1(2) or for the benefit of the Holders of
such Securities and
(2) the occurrence of any event specified in Section
5.1(4) (with respect to Section 10.6 and any such covenants
provided pursuant to Section 3.1(19) or 9.1(2) shall be deemed not
to be or result in an Event of Default, in each case with respect
to such Securities as provided in this Section on and after the
date the conditions set forth in Section 13.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of
Section 5.1(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 13.4 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application
of Section 13.2 or Section 13.3 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 6.9 and agrees
to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, without the need to reinvest principal or interest, to pay
and discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge, the principal
of and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation
of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (ii)
an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any U.S. Government Obligation which is specified
in Clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific
payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt
(2) In the event of an election to have Section 13.2
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.3
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not
to occur.
(4) The Company shall have delivered to the Trustee
an Officers' Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of
time or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such
event specified in Sections 5.1(5) and (6), at any time on or prior
to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such
90th day)
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning
of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act
unless such trust shall be registered under such Act or exempt from
registration thereunder.
(9) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
SECTION 13.5 DEPOSITED MONEY AND US GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; MISCELLANEOUS
PROVISIONS.
Subject to the provisions of the last paragraph of
Section 10.3, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 13.6, the Trustee and any
such other trustee are referred to collectively as the "Trustee") pursuant
to Section 13.4 in respect of any Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 13.4 or the principal
and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of Outstanding
Securities and is not paid or payable by the Trustee.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations held by it as
provided in Section 13.4 with respect to any Securities which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may
be, with respect to such Securities.
SECTION 13.6 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any Securities by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 13.2 or 13.3 shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to
Section 13.5 with respect to such Securities in accordance with this
Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the
rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into shares of Common Stock
of the Company, and the issuance of such shares of Common Stock upon the
conversion of such Securities, except as otherwise specified as
contemplated by Section 3.1 for the Securities of such series.
SECTION 14.2 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise a conversion privilege, the Holder
of a Security of a series with such a privilege shall surrender such
Security to the Company at the office or agency maintained for that purpose
pursuant to Section 10.2, accompanied by a duly executed conversion notice
to the Company substantially in the form set forth in Section 2.4 stating
that the Holder elects to convert such Security or a specified portion
thereof. Such notice shall also state, if different from the name and
address of such Holder, the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by or accompanied by instruments of transfer in forms satisfactory
to the Company and the Trustee duly executed by the registered Holder or
its attorney duly authorized in writing; and Securities so surrendered for
conversion (in whole or in part) during the period from the close of
business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date (excluding Securities or portions thereof
called for redemption during the period beginning at the close of business
on a Regular Record Date and ending at the opening of business on the first
Business Day after the next succeeding Interest Payment Date, or if such
Interest Payment Date is not a Business Day, the second such Business Day)
shall also be accompanied by payment in funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on
the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of Section 3.7
relating to the payment of Defaulted Interest by the Company. As promptly
as practicable after the receipt of such notice and of any payment required
pursuant to a Board Resolution and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto setting forth the
terms of such series of Security, and the surrender of such Security in
accordance with such reasonable regulations as the Company may prescribe,
the Company shall issue and shall deliver, at the office or agency at which
such Security is surrendered, to such Holder or on its written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion
thereof), in accordance with the provisions of such Board Resolution,
Officers' Certificate or supplemental indenture, and cash as provided
therein in respect of any fractional share of such Common Stock otherwise
issuable upon such conversion. Such conversion shall be deemed to have been
effected immediately prior to the close of business on the date on which
such notice and such payment, if required, shall have been received in
proper order for conversion by the Company and such Security shall have
been surrendered as aforesaid (unless such Holder shall have so surrendered
such Security and shall have instructed the Company to effect the
conversion on a particular date following such surrender and such Holder
shall be entitled to convert such Security on such date, in which case such
conversion shall be deemed to be effected immediately prior to the close of
business on such date) and at such time the rights of the Holder of such
Security as such Security Holder shall cease and the person or persons in
whose name or names any certificate or certificates for shares of Common
Stock of the Company shall be issuable upon such conversion shall be deemed
to have become the Holder or Holders of record of the shares represented
thereby. Except as set forth above and subject to the final paragraph of
Section 3.7, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities (or any part thereof)
surrendered for conversion or on account of any dividends on the Common
Stock of the Company issued upon such conversion. In the case of any
Security which is converted in part only, upon such conversion the Company
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Company, a new Security
or Securities of the same series, of authorized denominations, in aggregate
principal amount equal to the unconverted portion of such Security.
SECTION 14.3 NO FRACTIONAL SHARES.
No fractional share of Common Stock of the Company shall
be issued upon conversions of Securities of any series. If more than one
Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. If, except for the provisions of this Section 14.3, any
Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such
Holder an amount in cash equal to the current market value of such
fractional share computed, (i) if such Common Stock is listed or admitted
to unlisted trading privileges on a national securities exchange or market,
on the basis of the last reported sale price regular way on such exchange
or market on the last trading day prior to the date of conversion upon
which such a sale shall have been effected, or (ii) if such Common Stock is
not at the time so listed or admitted to unlisted trading privileges on a
national securities exchange or market, on the basis of the average of the
bid and asked prices of such Common Stock in the over-the-counter market,
on the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the
National Quotation Bureau, Incorporated is no longer reporting such
information, or if not so available, the fair market price as determined by
the Board of Directors. For purposes of this Section, "trading day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday other than any
day on which the Common Stock is not traded on the Nasdaq National Market,
or if the Common Stock is not traded on the Nasdaq National Market, on the
principal exchange or market on which the Common Stock is traded or quoted.
SECTION 14.4 ADJUSTMENT OF CONVERSION PRICE.
The conversion price of Securities of any series that is
convertible into Common Stock of the Company shall be adjusted for any
stock dividends, stock splits, reclassifications, combinations or similar
transactions in accordance with the terms of the supplemental indenture or
Board Resolutions setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute the
adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 10.2 and,
if different, with the Trustee. The Company shall forthwith cause a notice
setting forth the adjusted conversion price to be mailed, first class
postage prepaid, to each Holder of Securities of such series at its address
appearing on the Security Register and to any conversion agent other than
the Trustee.
SECTION 14.5 NOTICE OF CERTAIN CORPORATE ACTIONS.
In case:
(1) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in
cash out of its retained earnings (other than a dividend for which
approval of any shareholders of the Company is required) that would
require an adjustment pursuant to Section 14.4; or
(2) the Company shall authorize the granting to all
or substantially all of the holders of its Common Stock of rights,
options or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights (other than any
such grant for which approval of any shareholders of the Company is
required); or
(3) of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its
outstanding shares of Common Stock, or of any consolidation, merger
or share exchange to which the Company is a party and for which
approval of any shareholders of the Company is required), or of the
sale of all or substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; then the Company shall
cause to be filed with the Trustee, and shall cause to be mailed to
all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case
specified in Clause (1) or (2) above) prior to the applicable
record date hereinafter specified, a notice stating (i) the date on
which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of
Record to be entitled to such dividend, distribution, rights,
options or warrants are to be determined, or (ii) the date on which
such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up. If at any time the
Trustee shall not be the conversion agent, a copy of such notice
shall also forthwith be filed by the Company with the Trustee.
SECTION 14.6 RESERVATION OF SHARES OF COMMON STOCK.
The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of Securities,
the full number of shares of Common Stock of the Company then issuable upon
the conversion of all outstanding Securities of any series that has
conversion rights.
SECTION 14.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION.
Except as provided in the next sentence, the Company will
pay any and all taxes that may be payable in respect of the issue or
delivery of shares of its Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue and
delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue
has paid to the Company the amount of any such tax, or has established, to
the satisfaction of the Company, that such tax has been paid.
SECTION 14.8 NONASSESSABILITY.
The Company covenants that all shares of its Common Stock
which may be issued upon conversion of Securities will upon issue in
accordance with the terms hereof be duly and validly issued and fully paid
and nonassessable.
SECTION 14.9 PROVISION IN CASE OF CONSOLIDATION, MERGER OR
SALE OF ASSETS.
In case of any consolidation or merger of the Company
with or into any other Person, any merger of another Person with or into
the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any conveyance, sale, transfer or
lease of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security
of a series then Outstanding that is convertible into Common Stock of the
Company shall have the right thereafter (which right shall be the exclusive
conversion right thereafter available to said Holder), during the period
such Security shall be convertible, to convert such Security only into the
kind and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by a holder of
the number of shares of Common Stock of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease, assuming such holder of Common
Stock of the Company (i) is not a Person with which the Company
consolidated or merged with or into or which merged into or with the
Company or to which such conveyance, sale, transfer or lease was made, as
the case may be (a "Constituent Person"), or an Affiliate of a Constituent
Person and (ii) failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease (provided
that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer, or
lease is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, conveyance, sale, transfer
or lease by others than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("Non-electing Share"), then for the purpose of this Section 14.9 the kind
and amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by the holders
of each Non-electing Share shall be deemed to be the kind and amount so
receivable per share by a plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for
in this Article or in accordance with the terms of the supplemental
indenture or Board Resolutions setting forth the terms of such adjustments.
The above provisions of this Section 14.9 shall similarly apply to
successive consolidations, mergers, conveyances, sales, transfers or
leases. Notice of the execution of such a supplemental indenture shall be
given by the Company to the Holder of each Security of a series that is
convertible into Common Stock of the Company as provided in Section 1.6
promptly upon such execution. Neither the Trustee nor any conversion agent,
if any, shall be under any responsibility to determine the correctness of
any provisions contained in any such supplemental indenture relating either
to the kind or amount of shares of stock or other securities or property or
cash receivable by Holders of Securities of a series convertible into
Common Stock of the Company upon the conversion of their Securities after
any such consolidation, merger, conveyance, transfer, sale or lease or to
any such adjustment, but may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon,
an Opinion of Counsel with respect thereto, which the Company shall cause
to be furnished to the Trustee upon request.
SECTION 14.10 DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any conversion agent shall at any
time be under any duty or responsibility to any Holder of Securities of any
series that is convertible into Common Stock of the Company to determine
whether any facts exist which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, whether herein or in any
supplemental indenture, any resolutions of the Board of Directors or
written instrument executed by one or more officers of the Company provided
to be employed in making the same. Neither the Trustee nor any conversion
agent shall be accountable with respect to the validity or value (or the
kind or amount) of any shares of Common Stock of the Company, or of any
securities or property, which may at any time be issued or delivered upon
the conversion of any Securities and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Subject to the
provisions of Section 6.1, neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of its Common Stock or stock certificates or other
securities or property upon the surrender of any Security for the purpose
of conversion or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture,
resolutions of the Board of Directors or written instrument executed by one
or more duly authorized officers of the Company.
SECTION 14.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by
the Company or on its behalf with the Trustee or any other paying agent for
the purpose of paying the principal of, and premium, if any, and interest,
if any, on any of the Securities (including, but not limited to, funds
deposited for the sinking fund referred to in Article 12 hereof and funds
deposited pursuant to Article 13 hereof) and which shall not be required
for such purposes because of the conversion of such Securities as provided
in this Article 14 shall after such conversion be repaid to the Company by
the Trustee upon the Company's written request, accompanied by an Officer's
Certificate to that effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
XXXXXXX & XXXX FINANCIAL, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
ATTEST:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
As Trustee
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
