Exhibit 4.4
[FORM OF SUBORDINATED INDENTURE]
THE NAVIGATORS GROUP, INC.
AND
JPMORGAN CHASE BANK, N.A.
TRUSTEE
---------------------------------
INDENTURE
SUBORDINATED DEBT SECURITIES
Dated as of , 2005
---------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.................1
SECTION 1.01. DEFINITIONS................................................1
SECTION 1.02. OTHER DEFINITIONS..........................................5
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..........5
SECTION 1.04. RULES OF CONSTRUCTION......................................6
SECTION 1.05. ACTS OF HOLDERS............................................6
ARTICLE 2 THE SECURITIES.............................................7
SECTION 2.01. FORM AND DATING............................................7
SECTION 2.02. AMOUNT UNLIMITED; ISSUABLE IN SERIES.......................8
SECTION 2.03. DENOMINATIONS.............................................11
SECTION 2.04. EXECUTION AND AUTHENTICATION..............................11
SECTION 2.05. REGISTRAR AND PAYING AGENT; APPOINTMENT OF
DEPOSITARY................................................12
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.......................13
SECTION 2.07. HOLDER LISTS..............................................13
SECTION 2.08. TRANSFER AND EXCHANGE.....................................13
SECTION 2.09. REPLACEMENT SECURITIES....................................16
SECTION 2.10. OUTSTANDING SECURITIES....................................17
SECTION 2.11. TREASURY SECURITIES.......................................17
SECTION 2.12. TEMPORARY SECURITIES......................................18
SECTION 2.13. CANCELLATION..............................................18
SECTION 2.14. DEFAULTED INTEREST........................................18
ARTICLE 3 REDEMPTION AND PREPAYMENT.................................19
SECTION 3.01. APPLICABILITY OF ARTICLE..................................19
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED....................19
SECTION 3.03. NOTICE OF REDEMPTION......................................19
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION............................20
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE...................20
SECTION 3.06. SECURITIES REDEEMED OR PURCHASED IN PART..................21
SECTION 3.07. MANDATORY REDEMPTION; SINKING FUND........................21
ARTICLE 4 COVENANTS.................................................23
SECTION 4.01. PAYMENT OF SECURITIES.....................................23
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY...........................23
SECTION 4.03. REPORTS...................................................23
SECTION 4.04. COMPLIANCE CERTIFICATE....................................24
SECTION 4.05. CONTINUED EXISTENCE.......................................24
SECTION 4.06. STAY, EXTENSION AND USURY LAWS............................25
ARTICLE 5 SUCCESSORS................................................25
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SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS..................25
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED..............................25
ARTICLE 6 DEFAULTS AND REMEDIES.....................................26
SECTION 6.01. EVENTS OF DEFAULT.........................................26
SECTION 6.02. ACCELERATION..............................................27
SECTION 6.03. OTHER REMEDIES............................................27
SECTION 6.04. WAIVER OF PAST DEFAULTS; RESCISSION OF
ACCELERATION..............................................28
SECTION 6.05. CONTROL BY MAJORITY.......................................28
SECTION 6.06. LIMITATION ON SUITS.......................................28
SECTION 6.07. RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE
PAYMENT...................................................29
SECTION 6.08. COLLECTION SUIT BY TRUSTEE................................29
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM..........................29
SECTION 6.10. PRIORITIES................................................30
SECTION 6.11. UNDERTAKING FOR COSTS.....................................30
ARTICLE 7 TRUSTEE...................................................31
SECTION 7.01. DUTIES OF TRUSTEE.........................................31
SECTION 7.02. RIGHTS OF TRUSTEE.........................................32
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE..............................32
SECTION 7.04. TRUSTEE'S DISCLAIMER......................................33
SECTION 7.05. NOTICE OF DEFAULTS........................................33
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE
SECURITIES................................................33
SECTION 7.07. COMPENSATION AND INDEMNITY................................33
SECTION 7.08. REPLACEMENT OF TRUSTEE....................................34
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC..........................35
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.............................35
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY...................................................36
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE..................36
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE................................................36
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE............................37
SECTION 8.03. COVENANT DEFEASANCE.......................................38
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE................38
SECTION 8.05. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS..................................39
SECTION 8.06. REPAYMENT TO COMPANY......................................40
SECTION 8.07. REINSTATEMENT.............................................40
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER..........................41
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SECURITIES..................41
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SECTION 9.02. WITH CONSENT OF HOLDERS OF SECURITIES.....................42
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.......................43
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.........................44
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.....................44
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC...........................44
SECTION 9.07. AMENDMENTS TO SUBORDINATION PROVISIONS....................44
ARTICLE 10 SUBORDINATION.............................................44
SECTION 10.01. AGREEMENT TO SUBORDINATE..................................44
SECTION 10.02. CERTAIN DEFINITIONS.......................................45
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY......................45
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.........................45
SECTION 10.05. ACCELERATION OF SECURITIES................................46
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.......................46
SECTION 10.07. NOTICE BY COMPANY.........................................47
SECTION 10.08. SUBROGATION...............................................47
SECTION 10.09. RELATIVE RIGHTS...........................................47
SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY..............48
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE..................48
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT........................48
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.....................49
ARTICLE 11 MEETINGS OF HOLDERS.......................................49
SECTION 11.01. PURPOSES FOR WHICH MEETING MAY BE CALLED..................49
SECTION 11.02. CALL, NOTICE AND PLACE OF MEETINGS........................49
SECTION 11.03. PERSONS ENTITLED TO VOTE AT MEETINGS......................50
SECTION 11.04. QUORUM; ACTION............................................50
SECTION 11.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS...................................51
SECTION 11.06. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.............51
SECTION 11.07. ARTICLE SUBJECT TO OTHER PROVISIONS.......................52
ARTICLE 12 MISCELLANEOUS.............................................52
SECTION 12.01. TRUST INDENTURE ACT CONTROLS..............................52
SECTION 12.02. NOTICES...................................................52
SECTION 12.03. COMMUNICATION BY HOLDERS OF SECURITIES WITH
OTHER HOLDERS OF SECURITIES...............................53
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.................................................53
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.............54
SECTION 12.06. RULES BY TRUSTEE AND AGENTS...............................54
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS................................54
SECTION 12.08. GOVERNING LAW.............................................55
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS................................................55
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SECTION 12.10. SUCCESSORS................................................55
SECTION 12.11. SEVERABILITY..............................................55
SECTION 12.12. COUNTERPART ORIGINALS.....................................55
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC..........................55
EXHIBITS
Exhibit A-1 Form of Subordinated Note
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Reconciliation and tie between the Trust Indenture Act of 1939, as amended,
and the Indenture dated as of , 2005 between The Navigators
Group, Inc. and JPMorgan Chase Bank, N.A., as Trustee.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
------------------------------------------- -------------------------------
310(a)(1) 7.10
310(a)(2) 7.10
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 7.10
310(b) 7.03, 7.08, 7.10
310(c) N/A
311(a) 7.11
311(b) 7.11
311(c) N/A
312(a) 2.07
312(b) 11.03
312(c) 11.03
313(a) 7.06
313(b) 7.06
313(c) 7.06, 11.02
313(d) 7.06
314(a) 4.03
314(b) N/A
314(c) 4.04, 11.05
314(d) N/A
314(e) 11.05
314(f) N/A
315(a) 7.01
315(b) 7.05
315(c) 7.01
315(d) 7.01
315(e) 6.11
316(a)(1) 6.04, 6.05
316(a)(2) N/A
316(a)last sentence 2.11
316(b) 6.07
316(c) 1.05
317(a) 6.08, 6.09
317(b) 2.06
318(a) 11.01
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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Attention should also be directed to Section 318(c) of the Trust Indenture
Act of 1939, as amended, which provides that the provisions of Sections 310
through 317 of such Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
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SUBORDINATED INDENTURE, dated as of , 2005 (this "Indenture")
between THE NAVIGATORS GROUP, INC., a Delaware corporation (the "Company"), and
JPMORGAN CHASE BANK, N.A., a national banking association, as trustee (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its secured or
unsecured subordinated debentures, notes, bonds or other evidences of
indebtedness ("SECURITIES"), including, without limitation, junior subordinated
deferrable interest debentures, unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.
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 as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"AGENT" means any Registrar or Paying Agent.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the Company
or any authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a resolution of the Board of Directors.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" means The Navigators Group, Inc., and any and all successors
thereto pursuant to Article 5 hereof.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee
may give notice to the Company.
"CREDIT FACILITY" means (1) the Second Amended and Restated Credit
Agreement dated as of January 31, 2005 among the Company, certain financial
institutions and JPMorgan Chase Bank, N.A., as administrative agent, and (2) any
other bank or institutional credit facility of the Company as identified in any
supplemental indenture or Board Resolution establishing a series of Securities,
including any amendment, supplement, modification, restatement, replacement,
refunding or refinancing.
"CUSTODIAN" means the Trustee, as custodian with respect to Securities in
global form, or any successor entity thereto.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEPOSITARY" means, with respect to any series of Securities issuable or
issued in whole or in part in global form, the Person specified in accordance
with Section 2.02 hereof as the Depositary with respect to the Global Securities
of that series, and any and all successors thereto registered and in good
standing as a clearing agency under the Exchange Act, appointed as depositary
hereunder and having become such pursuant to the applicable provision of this
Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means United States generally accepted accounting principles.
"GLOBAL SECURITIES" means, individually and collectively, the Securities
issued in global form in accordance with Sections 2.01 and 2.08 hereof.
"HOLDER" means a Person in whose name a Security is registered.
"INDEBTEDNESS" means with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, securities, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances, except any
such balance that constitutes an accrued expense or trade payable, if and to the
extent any of the foregoing indebtedness (other than letters of credit) would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, as well as all indebtedness of others secured by a lien on any asset
of such Person (whether or not such indebtedness is assumed by such Person) and,
to the extent not otherwise included, the guarantee by such Person of any
indebtedness of any other Person. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence of
the contingency giving rise to the obligation, of any contingent obligations at
such date; provided that the amount outstanding at any time of any Indebtedness
issued with original issue discount is the full amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP. The amount of
any Indebtedness outstanding as of any date shall be (i) the accreted value
thereof, in the case of any Indebtedness issued with original issue discount and
(ii) the principal amount thereof, together with any interest thereon that is
more than 30 days past due, in the case of any other Indebtedness.
"INDENTURE" means this Indenture, as amended, waived or supplemented from
time to time and shall include and incorporate by reference the forms and terms
of particular series of Securities established as contemplated hereunder.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest in a
Global Security through a Participant.
"INTEREST PAYMENT DATE" when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a Place of Payment are authorized by
law, regulation or
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executive order to remain closed. If a payment date is a Legal Holiday at a
Place of Payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday at such Place of Payment, and no interest shall
accrue on such payment for the intervening period.
"OBLIGATIONS" means any principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable (1)
under this Indenture or the applicable Securities, or (2) under Senior Debt.
"OFFICER" means, with respect to any Person, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant
Secretary, any Vice President or any Assistant Vice President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom for purposes of Section 4.04(a) must
be the principal executive officer, the principal financial officer or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof, to the extent applicable.
"OPINION OF COUNSEL" means an opinion from legal counsel that meets the
requirements of Section 12.05 hereof, to the extent applicable. The counsel may
be an employee of or counsel to the Company, any Subsidiary of the Company or
the Trustee.
"PARTICIPANT" means, with respect to the Depositary, a Person who has an
account with the Depositary.
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or agency or political subdivision thereof.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer within the Worldwide Securities Services department of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers, in each case who is the officer responsible for the
administration of this Indenture, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"SEC" means the Securities and Exchange Commission.
"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, as amended.
"SENIOR BANK DEBT" means the Indebtedness (including letters of credit)
outstanding under the Credit Facility.
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"SENIOR DEBT" means any Indebtedness unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Securities. Without limiting the
generality of the foregoing, Senior Debt includes Obligations under the Credit
Facility, Obligations under the Senior Indenture and Obligations under any
securities issued under the Senior Indenture. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (a) any Indebtedness of
the Company to any of its Subsidiaries or other Affiliates, (b) any trade
payables or (c) any Indebtedness that is incurred in violation of this
Indenture.
"SENIOR INDENTURE" means the Senior Indenture dated the date hereof between
the Company and JPMorgan Chase Bank, N.A., as trustee, as amended, modified or
supplemented from time to time.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.
"STATED MATURITY" means, with respect to any interest or principal on any
series of Securities, the date on which such payment of interest or principal is
scheduled to be paid thereon by its terms as in effect from time to time, and
does not include any contingent obligation to repay, redeem or repurchase any
such interest or principal prior to the date scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock or other equity interests entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
(of such Person or a combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such a Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof.)
"TIA" means the Trust Indenture Act of 1939, as amended, and as in effect
on the date above written.
"TRUSTEE" means the Person named as such above until a successor replaces
it in accordance with 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 OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
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case under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
--------------------------------------------------------- ----------------
"Act" 1.05
"Authentication Order" 2.04
"Covenant Defeasance" 8.03
"custodian" 6.01
"Designated Senior Debt" 10.02
"distribution" 10.02
"Event of Default" 6.01
"Legal Defeasance" 8.02
"mandatory sinking fund payment" 3.07
"Notice of Default" 6.01
"optional sinking fund payment" 3.07
"outstanding" 8.02
"Paying Agent" 2.05
"Payment Blockage Notice" 10.04(a)(2)
"Place of Payment" 4.02
"Registrar" 2.05
"Representative" 10.02
"sinking fund payment date" 3.07
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITY HOLDER" means a Holder of a Security;
"INDENTURE TO BE QUALIFIED" means this Indenture;
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"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company and any successor or other
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
For the purposes of this Indenture, unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting
principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.
SECTION 1.05. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders, in person or by an agent
duly appointed in writing or may be embodied in and evidenced by the record of
Holders voting in favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders duly called and held in accordance with
the provisions of Article 11, or a combination of such instruments or record
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments and so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any such agent or
proxy shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section and Section 11.06. The record of any meeting of Holders shall be proved
in the manner provided in Section 11.06.
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(b) Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depositary that
is a Holder of a Global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interests in any such Global Security through such Depositary's
standing instructions and customary practices.
(c) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(d) The ownership of Securities shall be proved by the Register.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Securities of each series shall be in substantially
the form attached hereto as Exhibit A-1, or 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 applicable securities exchange, organizational document,
governing instrument or law or as may, consistently herewith, be determined by
the officers executing such Securities as evidenced by their execution of the
Securities. If temporary Securities of any series are issued as permitted by
Section 2.12, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities of any series are established by,
or by action taken pursuant to, a Board Resolution, a copy of the Board
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 the certificate, together with an appropriate record of
any such action taken pursuant thereto, including a copy of the approved form of
Securities shall be delivered to the Trustee at or prior to the delivery of the
Authentication Order contemplated by Section 2.04 for the authentication and
delivery of such Securities. The Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Subordinated Indenture.
JPMorgan Chase Bank, N.A.,
as Trustee
By:___________________________
Authorized Officer
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(b) GLOBAL SECURITIES. If Securities of or within a series are
issuable in whole or in part in global form, any such Security may provide that
it shall represent the aggregate or specified amount of outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate
amount of outstanding Securities represented thereby may from time to time be
reduced or increased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as shall be specified
therein or upon the written order of the Company signed by an Officer to be
delivered to the Trustee pursuant to Section 2.04 or 2.12. Subject to the
provisions of Section 2.04, Section 2.12, if applicable, and Section 2.08, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable written order of the Company signed by an Officer. Any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing.
The provisions of the last paragraph of Section 2.04 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions with regard to the reduction in the principal
amount of Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 2.04.
Notwithstanding the provisions of this Section 2.01, unless otherwise
specified as contemplated by Section 2.02, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
Holder thereof.
SECTION 2.02. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and set forth, or determined in the manner
provided, in an Officers' Certificate or (iii) in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to 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 2.08, 2.09, 2.12, 3.06 or 9.05
or any Securities that, pursuant to Section 2.04, are deemed never to have
been authenticated and delivered hereunder);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method or methods of
determination thereof;
8
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method or methods of calculating such rate or
rates of interest, the date or dates from which such interest shall accrue
or the method or methods by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable, the
right, if any, of the Company to defer or extend an Interest Payment Date,
the record date, if any, for the interest payable on any Security on any
Interest Payment Date, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices and
demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 3.02, the manner in which the particular
Securities of such series (if less than all Securities of such series are
to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than U.S. dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable;
(10) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit
or units) other than that in which such Securities are denominated or
designated to be payable, the currency or currencies (including currency
unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto;
(11) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index,
9
formula or other method (which index, formula or method may be based,
without limitation, on a currency or currencies (including currency unit or
units) other than that in which the Securities of the series are
denominated or designated to be payable), the index, formula or other
method by which such amounts shall be determined and any special voting or
defeasance provisions in connection therewith;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 6.02 or the
method by which such portion shall be determined;
(13) the Person to whom any interest on any Security of the series
shall be payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default set forth in Section 6.01 or covenants of the Company set forth
in Article 4 pertaining to the Securities of the series;
(16) under what circumstances, if any, and with what procedures and
documentation the Company will pay additional amounts on the Securities of
that series held by a Person who is not a U.S. Person (including any
definition of such term) in respect of taxes, assessments or similar
charges withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional amounts
(and the terms of any such option);
(17) the forms of the Securities of the series;
(18) if either or both of Sections 8.02 or 8.03 do not apply to the
Securities of the series, and if either or both of such Sections are not
applicable, such other means of defeasance or covenant defeasance as may be
specified for the Securities of such series;
(19) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(20) if the Securities of the series shall be issued in whole or in
part in global form, (A) the Depositary for such Global Securities, (B)
whether beneficial owners of interests in any Securities of the series in
global form may, pursuant to Section 2.08(f), exchange such interests for
certificated Securities of such series, to be registered in the names of or
to be held by such beneficial owners or their nominees and to be of like
tenor of any authorized form and denomination, and (C) if other than as
provided in Section 2.08, the circumstances under which any such exchange
may occur;
(21) any restrictions on the registration, transfer or exchange of the
Securities;
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(22) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of principal or interest is
payable, only upon receipt of certain certificates or other documents or
satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(23) the terms and conditions of any right to convert or exchange
Securities of the series into or for other securities or property of the
Company;
(24) whether the Securities are secured or unsecured, and if secured,
the security and related terms in connection therewith (which shall be
provided for in a separate security agreement and/or other appropriate
documentation), each in form satisfactory to the Trustee; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection with
the marketing of Securities of the series.
(c) All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) by a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and set forth,
or determined in the manner provided, in the related Officers' Certificate or
(iii) in an indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series. The Company may, subject to obtaining all necessary
corporate approvals but without the consent of any Holder of a Security, issue
additional Securities in a series having the same CUSIP number and the same
ranking, interest rate, maturity and other terms as the other Securities of the
series. The Securities of each series shall be issuable only in fully registered
form without coupons.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
SECTION 2.03. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 2.02, Securities of a
series denominated in Dollars shall be issuable in denominations of U.S. $1,000
and any integral multiple thereof. Securities denominated in a foreign currency
shall be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
SECTION 2.04. EXECUTION AND AUTHENTICATION.
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An Officer shall sign the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds that office
at the time a Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature
of an authorized officer of the Trustee. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an Officer
(an "AUTHENTICATION ORDER"), together with an Officers' Certificate and an
Opinion of Counsel, authenticate Securities for original issue in the aggregate
principal amount and pursuant to such procedures acceptable to the Trustee as
are stated in the Authentication Order. In addition to the matters required by
Section 12.05, such Officers' Certificate and Opinion of Counsel shall cover
such other matters as the Trustee shall reasonably request.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
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 2.13 together with a written statement stating that such
Security has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this Indenture.
SECTION 2.05. REGISTRAR AND PAYING AGENT; APPOINTMENT OF DEPOSITARY.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Securities may be presented for payment ("PAYING AGENT").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "REGISTRAR" includes any co-registrar and the
term "PAYING AGENT" includes any additional paying agent. Notwithstanding
anything herein to the contrary, there shall be only one register for the
Securities. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company shall promptly notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Securities.
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The Company initially appoints the Trustee to act as the Registrar and
Paying Agent with respect to the Securities and to act as Custodian with respect
to the Global Securities.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal,
premium or interest on the Securities or other payments in respect of the
Securities or otherwise held by it as Paying Agent, and will notify the Trustee
of any default by the Company in making any such payment when due. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Securities.
SECTION 2.07. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities, and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.08. TRANSFER AND EXCHANGE.
(a) Upon surrender for registration of transfer of any Security of any
series at the office or agency maintained pursuant to Section 4.02 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 a same aggregate principal amount and like tenor and
containing identical terms and provisions.
(b) At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations, of a same aggregate principal amount
and like tenor and containing identical terms and provisions, 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.
(c) Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated form, a
Security in global form representing all or a portion of the Securities of a
series may not be transferred except as a whole
13
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
(d) If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be registered and in good standing as
a clearing agency under the Exchange Act, the Company shall appoint a successor
Depositary with respect to the Securities of such series. If a successor
Depositary for the Securities of such series is not appointed by the Company
prior to the resignation of the Depositary and, in any event, within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's designation of the Depositary pursuant to Section 2.02(b)(20)
shall no longer be effective with respect to the Securities of such series, and
the Company shall execute, and the Trustee, upon receipt of an Authentication
Order for the authentication and delivery of certificated Securities of such
series of like tenor, shall authenticate and deliver, Securities of such series
of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form. Upon the occurrence of an Event of
Default, any Securities in book-entry form only at the Depositary will be
exchanged in a like manner for certificated Securities registered in the name of
the beneficial owner of such Securities or its nominee.
(e) The Company may at any time in its sole discretion, and subject to
the procedures of the Depositary, determine that all (but not less than all)
Securities of a series issued in global form shall no longer be represented by
such a Security or Securities in global form. In such event the Company shall
execute, and the Trustee, upon receipt of an Authentication Order for the
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver, Securities of such series of like tenor
in certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
(f) If specified by the Company pursuant to Section 2.02 with respect
to a series of Securities, the Depositary for such series may surrender a
Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like tenor,
of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Security in global form; and
(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the
14
surrendered Security in global form and the aggregate principal amount
of certificated Securities delivered to Holders thereof.
(g) Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities in certificated form issued in exchange for a Security in
global form pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Security in global
form, pursuant to instructions from its direct or Indirect Participants or
otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
(h) Whenever any Securities are 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.
(i) All Securities issued upon any registration of transfer or upon
any 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.
(j) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
(k) No service charge shall be made for any registration of transfer
or for any 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 or transfer or exchange of Securities, other
than exchanges pursuant to Section 2.12, 9.05 or 3.06 not involving any
transfer.
(l) The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for 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 and ending at the close of business on
the day of such mailing; or (ii) 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.
(m) The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
(n) The following legend shall appear on the face of all Global
Securities unless specifically stated otherwise in the applicable provision of
this Indenture:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation
15
("DTC"), to Issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in
the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
(o) At such time as all beneficial interests in a particular Global
Security have been exchanged for definitive Securities or a particular Global
Security has been redeemed, repurchased or canceled in whole and not in part,
each such Global Security shall be returned to or retained and canceled by the
Trustee in accordance with Section 2.13 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security or for definitive Securities, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Security, such other Global Security shall be increased
accordingly and an endorsement shall be made on such Global Security by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(p) Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and (subject to the record
date provisions of such Security) interest on such Securities and for all other
purposes, and neither the Trustee, any Agent nor the Company shall be affected
by notice to the contrary. Notwithstanding the foregoing, with respect to any
Global Security, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by any Depositary, as a
Holder, with respect to such Global Security or impair, as between such
Depositary and owners of beneficial interests in such Global Security, the
operation of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such Global Security.
(q) None of the Company, the Trustee nor any agent of the Company or
the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.09. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Security, the Company
16
shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Security is replaced. The Company may
charge for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
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 may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
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 2.10. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.11 hereof, a
Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Security.
If a Security is replaced pursuant to Section 2.09 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a "protected purchaser" (within the meaning of
Article 8 of the Uniform Commercial Code) or a Person with comparable status
under other applicable law.
If the principal amount of any Security is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Securities payable on that date, then on and after that date such
Securities shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.11. TREASURY SECURITIES.
17
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that the Trustee knows are so
owned shall be so disregarded.
SECTION 2.12. TEMPORARY SECURITIES.
Until certificates representing Securities are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of certificated Securities but may have variations
that the Company considers appropriate for temporary Securities and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the benefits of
this Indenture.
SECTION 2.13. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall dispose of canceled Securities in accordance with its customary procedures
(subject to the record retention requirement of the Exchange Act). Certification
of the disposition of all canceled Securities shall be delivered to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or that have been delivered to the Trustee for cancellation.
SECTION 2.14. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Securities. The Company shall notify the Trustee in writing of the amount
of defaulted interest proposed to be paid on each Security and the date of the
proposed payment. The Company shall fix or cause to be fixed each such special
record date and payment date; PROVIDED that no such special record date shall be
less than 10 days prior to the related payment date for such defaulted interest.
At least 15 days before the special record date, the Company (or, upon the
written request of the Company, the Trustee in the name and at the expense of
the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid. 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.
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ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.02 for Securities of such series.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series are to be redeemed at any
time, the Trustee shall select the Securities of such series to be redeemed
among the Holders of the Securities of such series by such method as the Trustee
deems fair and appropriate; PROVIDED that no Securities of $1,000 or less shall
be redeemed in part. The particular Securities of such series to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Securities of the series not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities and portions
of Securities selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Securities of a series of a Holder are to be
redeemed, the entire outstanding amount of Securities of such series held by
such Holder, even if not a multiple of $1,000, shall be redeemed. A new Security
of the same series and tenor in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Security. Securities called for redemption shall become due on the
redemption date. On and after the redemption date, interest will cease to accrue
on the Securities or portions of them called for redemption. Except as provided
in this Section 3.02, provisions of this Indenture that apply to Securities
called for redemption shall also apply to portions of Securities called for
redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
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
2.02 for such Securities. In case of any redemption at the election of the
Company, the Company shall, at least 45 days prior to the redemption date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such redemption date, 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 (a) prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or (b) pursuant to an election
of the Company which is subject to a condition specified 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 or
condition.
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At least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Securities are to be redeemed at its registered
address.
The notice shall identify the Securities to be redeemed, including the
series thereof, and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption will cease to accrue on
and after the redemption date;
(f) that in the case of any Security being redeemed in part, the
portion of the principal amount of such Security to be redeemed and that, after
the redemption date upon surrender of such Security, a new Security or
Securities of the same series and tenor in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original;
(g) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Securities called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
One Business Day prior to 10:00 a.m., Eastern Time, on any redemption date
or purchase date, the Company shall deposit with the Trustee or with the Paying
Agent money in immediately available funds sufficient to pay the redemption or
purchase price of and accrued interest, if any, on all Securities to be redeemed
or purchased on that date. The Trustee or the
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Paying Agent shall promptly return to the Company any money deposited with the
Trustee or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption or purchase price of, and accrued interest on, all Securities
to be redeemed or purchased.
SECTION 3.06. SECURITIES REDEEMED OR PURCHASED IN PART.
Upon surrender of a Security that is redeemed or purchased in part, the
Company shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Security of the
same series and tenor equal in principal amount to the unredeemed or unpurchased
portion of the Security surrendered.
SECTION 3.07. MANDATORY REDEMPTION; SINKING FUND.
The Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Securities, unless otherwise specified in the
terms of a particular series of Securities. If a mandatory or optional sinking
fund is specified in the terms of a particular series of Securities, the
following provisions will apply thereto (unless otherwise specified):
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." The last date on which any such payment may be made is herein
referred to as a "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Securities of that series theretofore
purchased by the Company and (b) may apply as a credit Securities of that series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of optional sinking fund
payments pursuant to the next succeeding paragraph, in each case in satisfaction
of all or any part of any mandatory sinking fund payment, PROVIDED that such
Securities have not been previously so credited. Each such Security so delivered
or applied as a credit shall be credited at the sinking fund redemption price
for such Securities and the amount of any mandatory sinking fund shall be
reduced accordingly. If the Company intends so to deliver or credit such
Securities with respect to any mandatory sinking fund payment it shall deliver
to the Trustee at least 45 days prior to the next succeeding sinking fund
payment date for such series (a) an Officers' Certificate specifying the portion
of such sinking fund payment, if any, to be satisfied by payment of cash and the
portion of such sinking fund payment, if any, which is to be satisfied by
delivering and crediting such Securities, and stating the basis of such credit
and that such Securities have not previously been so credited, and (b) any
Securities to be so delivered. All Securities so delivered to the Trustee shall
be cancelled by the Trustee and no Securities shall be authenticated in lieu
thereof. If the Company fails to deliver such certificate and Securities at or
before the time provided above, the Company shall not be permitted to satisfy
any portion of such mandatory sinking fund payment by delivery or credit of
Securities.
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At its option the Company may pay into the sinking fund for the retirement
of Securities of any particular series, on or before each sinking fund payment
date for such series, any additional sum in cash as specified by the terms of
such series of Securities. If the Company intends to exercise its right to make
any such optional sinking fund payment, it shall deliver to the Trustee at least
45 days prior to the next succeeding sinking fund payment date for such series
of Securities an Officers' Certificate stating that the Company intends to
exercise such optional right and specifying the amount which the Company intends
to pay on such sinking fund payment date. If the Company fails to deliver such
certificate at or before the time provided above, the Company shall not be
permitted to make any optional sinking fund payment with respect to such sinking
fund payment date. To the extent that such right is not exercised in any year it
shall not be cumulative or carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular series, it shall be applied by the
Trustee or one or more Paying Agents on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 3.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to exhaust said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Securities of such series to be given in substantially
the manner and with the effect provided in Sections 3.02 and 3.03 for the
redemption of Securities of that series in part at the option of the Company,
except that the notice of redemption shall also state that the Securities of
such series are being redeemed for the sinking fund. Any sinking fund moneys not
so applied or allocated by the Trustee or any Paying Agent to the redemption of
Securities of that series shall be added to the next cash sinking fund payment
received by the Trustee or the Paying Agent and, together with such payment,
shall be applied in accordance with the provisions of this Section 3.07. Any and
all sinking fund moneys held by the Trustee or any Paying Agent on the maturity
date of the Securities of any particular series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee or such Paying Agent, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Securities of that series at maturity. On or before each sinking fund payment
date, the Company shall pay to the Trustee or to one or more Paying Agents in
cash a sum equal to all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date
pursuant to this Section. Neither the Trustee nor any Paying Agent shall redeem
any Securities of a series with sinking fund moneys, and the Trustee shall not
mail any notice of redemption of Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph), except that if the notice of redemption of
any Securities shall theretofore have been mailed in accordance with the
provisions hereof, the Trustee or any paying agent shall redeem such Securities
if cash sufficient for that purpose shall be deposited with the Trustee or such
paying agent for that purpose in accordance with the terms of this Article 3.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter
paid into the sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of all such
22
Securities; PROVIDED, HOWEVER, that in case such Event of Default or default
shall have been cured or waived as provided herein, such moneys shall thereafter
be applied on the next succeeding sinking fund payment date on which such moneys
may be applied pursuant to the provisions of this Section 3.07.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Securities on the dates and in the manner provided in
the Securities. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m., Eastern Time, on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the State of New York or such other place of
payment specified in the Security or related supplemental indenture (each, a
"PLACE OF PAYMENT"), an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-Registrar) where Securities may
be surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall 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
Trustee's principal corporate trust office in the Borough of Manhattan, the City
of New York, which currently is located at 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Worldwide Securities Services.
The Company may also from time to time designate one or more other offices
or agencies where the Securities 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 the Place of
Payment for such purposes. The Company shall 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 4.03. REPORTS.
(a) The Company covenants and agrees to file with the Trustee, and to
provide by mail to each Holder, within 15 days after the Company is required to
file the same with the SEC, copies of the annual reports, quarterly reports and
the information, documents and other reports which the Company is required to
file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act.
23
(b) The Company covenants and agrees to file with the Trustee and the
SEC, in accordance with the rules and regulations prescribed from time to time
by the SEC, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such SEC rules and
regulations.
(c) The Company covenants and agrees to furnish to the Trustee within
120 days of the end of each fiscal year, the compliance certificate required by
TIA ss. 314(a)(4).
(d) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default, Event
of Default or other instance of non-compliance with any of the terms of this
Indenture shall have occurred, describing all such Defaults, Events of Default
or instances of non-compliance of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest on the Securities is prohibited or if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.05. CONTINUED EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its existence
as a corporation or other permitted entity, and the corporate, partnership or
other existence of each of its Significant Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to
time) of the Company or any such Significant Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company and any of its
Significant Subsidiaries;
24
PROVIDED, HOWEVER, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Significant Subsidiaries, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Significant Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders of
the Securities.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that 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 shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may consolidate or amalgamate with, merge into, convert itself
into, or sell, assign, transfer, lease, convey or otherwise dispose of
(including any such disposition that might be deemed to occur as a result of the
conversion of the Company into another form of organization) all or
substantially all of its properties or assets in one or more related
transactions, to another Person (other than an individual, a government or an
agency or political subdivision of a government), but only if (a) either (i) the
Company is the surviving entity or (ii) the Person formed by or surviving any
such consolidation, amalgamation, merger or conversion (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a Person organized or existing under the
laws of the United States, any state thereof, or the District of Columbia or
Bermuda; (b) the Person formed by or surviving any such consolidation,
amalgamation, merger or conversion (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee; and (c) immediately after such
transaction no Default or Event of Default exists. If the Company requests the
Trustee to enter into any supplemental indenture, or to take any other action,
as a result of such consolidation, amalgamation, merger, sale, assignment,
transfer, lease, conveyance or other disposition, the Company will also furnish
to the Trustee an Officers' Certificate and an Opinion of Counsel, each to the
effect that the conditions precedent set forth in this Section 5.01 have been
complied with.
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED.
25
Upon any consolidation, amalgamation, merger or conversion, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of the Company in accordance with
Section 5.01 hereof, the successor Person formed by such consolidation or
amalgamation or into or with which the Company is merged or converted or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, amalgamation, merger, conversion, sale, assignment,
transfer, lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to the successor Person
and not to the Company), 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; PROVIDED, HOWEVER, that the predecessor Company
shall not be relieved from the obligation to pay the principal of, premium, if
any, and interest on the Securities except in the case of a sale, assignment,
transfer, conveyance or other disposition (other than a lease) of all or
substantially all of the Company's properties or assets that meets the
requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default," with respect to Securities of any series shall have
occurred if:
(a) the Company defaults in the payment when due of interest on, or
with respect to, any Security of that series and such default continues for a
period of 30 days;
(b) the Company defaults in the payment when due of principal of or
premium, if any, on, or a sinking fund payment with respect to, any Security of
that series when the same becomes due and payable at maturity, upon redemption
or otherwise;
(c) the Company fails to comply with any of the provisions of Section
5.01 hereof;
(d) the Company fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture, with respect to
any Security of that series for 60 days after notice to comply;
(e) the Company, pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a custodian of it or for all
or substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors;
or
26
(v) generally is not paying its debts as they become due;
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case;
(ii) appoints a custodian of the Company for all or substantially
all of the property of the Company; or
(iii) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 consecutive days;
or
(g) any other event provided with respect to Securities of that series
in the terms thereof as contemplated by Section 2.02 hereof shall occur.
The term "CUSTODIAN" as used in this Article 6 means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (d) with respect to the Securities of any series is
not an Event of Default until the Trustee notifies the Company, or the Holders
of at least 25% in principal amount of the then outstanding Securities of all
series affected by the Default (treating all such series as a single class)
notify the Company and the Trustee, of the Default and the Company does not cure
the Default within 60 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "NOTICE
OF DEFAULT."
SECTION 6.02. ACCELERATION.
If any Event of Default with respect to one or more series of Securities
(other than an Event of Default specified in clause (e) or (f) of Section 6.01
hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Securities of all series with respect
to which an Event of Default shall have occurred and be continuing (treating all
such series as a single class) may declare all the Securities of all such series
to be due and payable immediately by a notice in writing to the Company (and to
the Trustee if given by Holders). Upon any such declaration, the principal of,
premium, if any, and accrued and unpaid interest with respect to the Securities
of all such series shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (e) or (f) of Section 6.01
hereof occurs, all outstanding Securities of all series shall be due and payable
immediately without further action or notice.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default with respect to a series of Securities occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, and interest on the Securities of such series or
to enforce the performance of any provision of the Securities of such series or
this Indenture with respect to such series.
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The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Security in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS; RESCISSION OF ACCELERATION.
Holders of a majority in aggregate principal amount of the then outstanding
Securities of all series affected (treating all such series as a single class)
may, by notice to the Trustee, on behalf of the Holders of all of the Securities
of all such series, waive an existing Default or Event of Default with respect
to such series and its consequences hereunder (including in connection with an
offer to purchase or exchange), except a continuing Default or Event of Default
in the payment of the principal of, premium, if any, interest on, or any sinking
fund payment with respect to, the Securities of such series, and except a
continuing Default or Event of Default under any provision of this Indenture
that, under Section 9.02, cannot be modified or waived without the consent of a
greater number of Holders or of each Holder affected. Upon any such waiver, such
Default or Event of Default shall be deemed to have been cured for every purpose
of this Indenture, but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon. The Holders
of a majority in aggregate principal amount of the then outstanding Securities
of all series affected (treating all such series as a single class) may also
rescind an acceleration and its consequences with respect to all such series,
including any related payment default that resulted from such acceleration, but
not including any other payment default.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Securities of all series with respect to which an Event of Default shall have
occurred and be continuing (treating all such series as a single class) may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it; PROVIDED that:
(i) such direction shall not be in conflict with any law or
rule or with this Indenture;
(ii) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(iii) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the
Holders of Securities of such series not joining therein.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Security of any series may pursue a remedy with respect to
this Indenture or the Securities of such series only if:
28
(a) the Holder of a Security of any or all series affected gives to
the Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Securities of all affected series (treating all such series as a
single class) make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of such notice, request and offer and, if requested, provision of
indemnity; and
(e) during such 30-day period the Holders of a majority in principal
amount of the then outstanding Securities of all such series (treating all such
series as a single class) do not give the Trustee a direction inconsistent with
the request.
A Holder of a Security may not use this Indenture to prejudice the rights
of another Holder of a Security or to obtain a preference or priority over
another Holder of a Security.
SECTION 6.07. RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security of any series to receive payment of principal, premium, if
any, and interest on such Security, on or after the respective due dates
expressed or provided for in such Security (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing with respect to any series of Securities, the Trustee is authorized
to recover judgment in its own name and as Trustee of an express trust against
the Company for the whole amount of principal of, premium, if any, and interest
remaining unpaid on such Securities and interest on overdue principal and, to
the extent lawful, interest at the rate provided for in such Securities and 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.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Securities of any series allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Securities), its
creditors or its property
29
and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any custodian 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 to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of any series or the rights
of any Holder, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or other property pursuant to this
Article, it shall pay out the money or other property in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: subject to Article 10, to Holders of Securities for amounts due and
unpaid on the Securities for principal, premium, if any, interest and any other
amounts, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium, if any,
interest and other amounts, respectively; and
THIRD: subject to Article 10, to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities pursuant to this Section 6.10.
SECTION 6.11. 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 or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Securities of any series.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture or
an indenture supplemental hereto, and use the same degree of care and skill in
its exercise, as a prudent person would exercise or use under the circumstances
in the conduct of its own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or an indenture supplemental
hereto, and the Trustee need perform only those duties that are
specifically set forth in this Indenture or an indenture supplemental
hereto and no others, and no implied covenants or obligations shall be
read into this Indenture or an indenture supplemental hereto against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proven that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability.
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(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both covering such matters as
it shall reasonably request. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel. 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 from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) 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 unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be charged with knowledge or deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the
Trustee shall have actual knowledge thereof or unless the Trustee shall have
received notice thereof in accordance with Section 12.02.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest (within
the meaning of TIA ss. 310(b)) it must eliminate such conflicting interest
within 90 days after Default, apply to the SEC for permission to continue as
trustee, or resign. Any Agent may do the same with like rights and duties.
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SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities; it shall not be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture; it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee; and it shall not be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if a
Responsible Officer of the Trustee has actual knowledge of such Default or Event
of Default, the Trustee shall mail to Holders of Securities a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, or interest on, any
Security, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Securities.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE SECURITIES.
On or before May 15 of each year, beginning with the May 15 following the
date on which Securities are first issued under this Indenture, and for so long
as Securities remain outstanding, the Trustee shall mail to the Holders of the
Securities a brief report dated as of such reporting date that complies with TIA
ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA ss. 313(c). A copy of each
report at the time of its mailing to the Holders of Securities shall be mailed
to the Company and filed with the SEC and each stock exchange on which the
Securities are listed in accordance with TIA ss. 313(d). The Company shall
promptly notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
for its acceptance of this Indenture and services hereunder as the Company and
Trustee have separately agreed. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services, except to the extent any disbursement, advance or expense may be
attributable to its negligence or willful misconduct. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of
33
its duties under this Indenture, including the reasonable costs and expenses of
enforcing this Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or willful
misconduct. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim, and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel, and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture, and the removal or resignation of
the Trustee.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except for those funds that are held in trust to pay
principal of, premium, if any, and interest on particular Securities. Such lien
shall survive the satisfaction and discharge of this Indenture.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(e) or (f) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities at any time and be discharged from the trust hereby created by so
notifying the Company in writing. The Holders of a majority in principal amount
of the then outstanding Securities of any series may remove the Trustee with
respect to such series by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee ceases to be eligible in accordance with Section 7.10
hereof;
(b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
34
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities of a series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company with respect to that series of Securities.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written request by any Holder of a Security who has
been a Holder of a Security for at least six months, ceases to be eligible in
accordance with Section 7.10, such Holder of a Security may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Securities. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; PROVIDED all sums owing
to the Trustee hereunder have been paid and subject to the lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee.
If a successor Trustee is appointed 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 any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees as 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.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
35
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trust powers, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50,000,000
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship described in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
(a) The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof, with such modifications thereto as may
be specified in the Board Resolution or supplemental indenture establishing a
particular series of Securities, be applied to all outstanding Securities of one
or more series upon compliance with the conditions set forth below in this
Article 8.
(b) As an alternative to having Section 8.02 or 8.03 be applied to all
outstanding Securities of one or more series, the Company may terminate its
obligations under the Securities of one or more series and its obligations under
this Indenture in respect of such series of Securities (except those obligations
referred to in the penultimate paragraph of this Section 8.01(b), and any
obligation of the Company to convert or exchange Securities of such series as
expressly provided for in the Board Resolution or indenture supplemental hereto
establishing such Series) (1) if (i) all Securities of such series theretofore
authenticated and delivered (except lost, stolen or destroyed Securities that
have been replaced or paid and Securities for whose payment cash in United
States dollars has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust as provided in Section 8.06) have been delivered to the Trustee for
cancellation; (ii) the Company has paid all sums payable by it hereunder or
under the applicable Board Resolution or indenture supplemental hereto in
respect of such series of Securities; and (iii) the Company shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge of this
Indenture with respect to such series have been complied with; or (2) if (i)
either (A) in the case of a series of Securities redeemable prior to its Stated
Maturity, such Securities are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the
36
giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company or (B) all Securities of such series have otherwise become due
and payable hereunder or will become due and payable within one year; (ii) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee (or a trustee satisfactory to the Trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee),
as trust funds in trust solely for the benefit of the Holders of Securities of
such series for that purpose, cash in United States dollars in such amount as is
sufficient without consideration of reinvestment of interest or other earnings
on such cash, to pay the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for the principal of, premium, if
any, and interest on the outstanding Securities of such series 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; (iii) no Default or
Event of Default with respect to this Indenture or the Securities shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the Company is
bound; (iv) the Company shall have paid all other sums payable by it hereunder
in respect of Securities of such series; and (v) the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.07, 2.08, 2.09, 2.10, 4.02, 7.07, 8.06 and 8.07 shall survive with
respect to the Securities of the applicable series until they are no longer
outstanding pursuant to the last paragraph of Section 2.10. After the Securities
of the applicable series are no longer outstanding, the Company's obligations in
Sections 7.07, 8.06 and 8.07 shall survive in respect of Securities of the
applicable series.
After such delivery or irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the applicable series and the Company's obligations under this
Indenture with respect to the Securities of such series, except for those
surviving obligations specified above.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02 relating to one or more series of Securities,
the Company shall, upon the satisfaction of the conditions set forth in Section
8.04 hereof, be deemed to have been discharged from its obligations with respect
to all outstanding Securities of such series on the date the conditions set
forth below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose,
Legal Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Securities of
the applicable series, which shall thereafter be deemed to be "OUTSTANDING" only
for the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all of its other
obligations under the Securities of the applicable series and under the
provisions of this Indenture applicable to such series (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights
37
of Holders of outstanding Securities of the applicable series to receive solely
from the trust fund described in Section 8.04 hereof, and as more fully set
forth in such Section, payments in respect of the principal of, premium, if any,
and interest, on such Securities when such payments are due, (b) the Company's
obligations with respect to such Securities under Article 2 and Section 4.02
hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, and the Company's obligations in connection therewith and (d) this
Article 8. Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 relating to one or more series of Securities,
the Company shall, upon the satisfaction of the conditions set forth in Section
8.04 hereof, be released from its obligations under the covenants contained in
Section 4.06 hereof with respect to the outstanding Securities of the applicable
series, and under any other covenants specified in the supplemental indenture or
other terms of the applicable series as covenants to which this Section 8.03
apply, on and after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and the Securities of the applicable
series shall thereafter be deemed not "OUTSTANDING" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "OUTSTANDING" for all other purposes hereunder (it being
understood that the Securities of the applicable series shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance
means that, with respect to the "OUTSTANDING" Securities of the applicable
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Securities of one or more series:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee ,(or another
trustee (satisfactory to the Trustee) satisfying the requirements of Section
7.10, who shall agree under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee to comply with the provisions of this
Article 8 applicable to it) in trust, for the benefit of the Holders of the
Securities of the applicable series, (i) an amount of cash in United States
dollars, (ii) non-callable U.S. Government Obligations which, through scheduled
payment of principal and interest in respect thereof in accordance with their
terms, will provide, not later than one Business Day before the due date of any
payment of principal of, premium, if any, or
38
interest on the Securities of such series, cash in an amount, or (iii) a
combination thereof, sufficient, in the written opinion of a nationally
recognized firm of independent public accountants delivered to the Trustee, to
pay the principal of, interest and premium, if any, on the outstanding
Securities of the applicable series on the Stated Maturity or on the applicable
redemption date, as the case may be, and any mandatory sinking fund payments
applicable to the Securities of such series on the day on which such payments
are due, and the Company must specify whether the Securities of the applicable
series are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Securities of the applicable series will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Securities of the applicable series will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Sections 6.01(e) or (f) hereof are concerned, at any time in the period
ending on the 91st day after the date of deposit (or greater period of time in
which any such deposit of trust funds may remain subject to bankruptcy or
insolvency laws insofar as those apply to the deposit by the Company); and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"TRUSTEE") pursuant to Section 8.04 hereof in respect of the outstanding
Securities of the applicable series shall be held in trust and applied
39
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as 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, premium, if any, and interest, but such money 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 cash or non-callable U.S.
Government Obligations deposited pursuant to Section 8.04 hereof 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 the
outstanding Securities of the applicable series.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable U.S. Government Obligations held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance of the applicable series.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money and U.S. Government Obligations deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium or interest on any Security and remaining unclaimed for
two years after such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such money and U.S.
Government Obligations, and all liability of the Company as trustee thereof,
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the NEW YORK TIMES and THE WALL STREET
JOURNAL (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars
or non-callable U.S. Government Obligations deposited pursuant to Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03 hereof, as the case may be; PROVIDED, HOWEVER, that if the Company makes
any payment
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of principal of, premium or interest on any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF SECURITIES.
Notwithstanding Section 9.02 of this Indenture, the Company and the Trustee
may amend or supplement this Indenture or the Securities without the consent of
any Holder of a Security:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 5
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the Holders of all or any
series of 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 for the benefit of such series) as the Board of Directors and the
Trustee shall consider to be for the protection of the Holders of such
Securities, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; PROVIDED,
HOWEVER, that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; PROVIDED that any such action shall not adversely
affect in any material respect the interests of the Holders of the Securities;
(e) 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
7.08;
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(f) to make any change that does not adversely affect in any material
respect the interests of any Holder;
(g) to provide for the issuance of and establish the form and terms
and conditions of the Securities of any series, to establish the form of any
certifications required to be furnished pursuant to the terms of this Indenture
or any series of Securities or to add to the rights of the Holders of any series
of Securities; or
(h) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA.
Upon the request of the Company accompanied by a copy of a Board
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 the certificate, authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Sections 7.02(b), 9.06 and 12.05 hereof, the Trustee
shall join with the Company in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations that may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental indenture that affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF SECURITIES.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture, or the Securities of any series may be
amended or supplemented, with the consent of the Holders of a majority in
principal amount of the Securities then outstanding of all series affected by
such supplemental indenture (voting as a single class) (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium or interest on the
Securities) or compliance with any provision of this Indenture or the Securities
of such series may be waived with the consent of the Holders of a majority in
principal amount of the Securities then outstanding of all series affected by
such waiver (voting as a single class) (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for
the Securities).
Upon the request of the Company accompanied by a copy of a Board
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 the certificate, authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Securities
of each such series as aforesaid, and upon receipt by the Trustee of the
documents described in Sections 7.02(b), 9.06 and 12.05 hereof, the Trustee
shall join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the
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Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of Securities of each series
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amended
or supplemental indenture or waiver.
However, without the consent of each Holder of Securities affected, an
amendment or waiver may not (with respect to any Securities held by a
non-consenting Holder):
(a) reduce the principal amount of the Securities whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of the
principal of, premium, if any, or mandatory sinking fund obligation, if any,
with respect to any Securities of any series or alter the provisions with
respect to the redemption of the Securities;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Security of any series;
(d) waive a Default or Event of Default in the payment of principal of
or interest or premium on the Securities of any series (except a rescission of
acceleration of the Securities by the Holders of a majority in aggregate
principal amount of the Securities of one or more affected series and a waiver
of the payment default that resulted from such acceleration);
(e) make any Security of any series payable in currency other than
that stated in the Securities of such series;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of or interest or premium on the Securities;
(g) waive a redemption payment with respect to any Security; or
(h) make any change in Section 6.04 or 6.07 hereof or in the amendment
and waiver provisions of Section 9.01 or this Section 9.02.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
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SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder of a Security
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Securities, even if notation
of the consent is not made on any Securities. However, any such Holder of a
Security or subsequent Holder of a Security may revoke the consent as to its
Securities if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement
or waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Securities thereafter authenticated. The Company in
exchange for all Securities may issue and the Trustee shall authenticate new
Securities that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or to issue new Securities shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Company may not sign an amendment or supplemental indenture until its
Board of Directors approves it. The Trustee shall sign any amendment or
supplemental indenture authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be entitled to receive and shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that such amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
SECTION 9.07. AMENDMENTS TO SUBORDINATION PROVISIONS
Any amendment to the provisions of Article 10 hereof will require the
consent of each holder of Senior Debt that would be adversely affected by such
amendment.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
(a) The Company agrees, and each Holder by accepting a Security
agrees, that the indebtedness evidenced by the Securities is subordinated in
right of payment, to the extent and in the manner provided in this Article, to
the prior payment in full of all Senior Debt (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
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(b) If any holder of Senior Debt is required by any court or otherwise
to return to the Company, or any Custodian (as defined in Article 6 of this
Indenture), trustee, or similar official acting in relation to the Company, any
amount paid by the Company to such holder of Senior Debt, the provisions of this
Article 10, to the extent theretofore discharged, shall be reinstated in full
force and effect; PROVIDED, HOWEVER, that any amounts paid pursuant to this
Indenture to Holders of Securities shall not be subject to disgorgement pursuant
to the provisions of this paragraph (b).
SECTION 10.02. CERTAIN DEFINITIONS.
"DESIGNATED SENIOR DEBT" means (i) the Senior Bank Debt and (ii) any other
Senior Debt permitted under this Indenture the principal amount of which is at
least the amount specified in the applicable supplemental indenture or Board
Resolution and that has been designated by the Company as "DESIGNATED SENIOR
DEBT."
"REPRESENTATIVE" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
A "distribution" may consist of cash, securities or other property, by
set-off or otherwise.
SECTION 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, an
assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment in full
of all Obligations due in respect of such Senior Debt (including interest after
the commencement of any such proceeding at the rate specified in the applicable
Senior Debt) before the Holders of Securities shall be entitled to receive any
payment with respect to the Securities (except that Holders may receive (i)
securities that are subordinated to at least the same extent as the Securities
to (a) Senior Debt and (b) any securities issued in exchange for Senior Debt and
(ii) payments and other distributions made from any defeasance trust created
pursuant to Section 8.05 hereof); and
(2) until all Obligations with respect to Senior Debt (as provided in
subsection (1) above) are paid in full, any distribution to which the Holders of
Securities would be entitled but for this Article shall be made to holders of
Senior Debt (except that Holders may receive (i) securities that are
subordinated to at least the same extent as the Securities to (a) Senior Debt
and (b) any securities issued in exchange for Senior Debt and (ii) payments and
other distributions made from any defeasance trust created pursuant to Section
8.05 hereof), as their interests may appear.
SECTION 10.04. DEFAULT ON DESIGNATED SENIOR DEBT.
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(a) The Company may not make any payment or distribution to the
Trustee or any Holder in respect of the Securities and may not acquire from the
Trustee or any Holder any Securities for cash or property (other than (1)
securities that are subordinated to at least the same extent as the Securities
to (A) Senior Debt and (B) any securities issued in exchange for Senior Debt and
(2) payments and other distributions made from any defeasance trust created
pursuant to Section 8.05 hereof) until all principal and other Obligations with
respect to the Senior Debt have been paid in full if:
(1) a default in the payment of the principal of, premium, if
any, or interest on Designated Senior Debt occurs and is continuing
beyond any applicable grace period in the agreement, indenture or other
document governing such Designated Senior Debt; or
(2) a default, other than a default specified in Section
10.04(a)(1), on Designated Senior Debt occurs and is continuing with
respect to Designated Senior Debt that then permits holders of the
Designated Senior Debt as to which such default relates to accelerate
its maturity and the Trustee receives a notice of the default (a
"PAYMENT BLOCKAGE NOTICE") from a Person who may give it pursuant to
Section 10.12 hereof. If the Trustee receives any such Payment Blockage
Notice, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until (I) at least 360 days shall
have elapsed since the effectiveness of the immediately prior Payment
Blockage Notice and (II) all scheduled payments of principal and
premium, if any, and interest on the Securities that have come due
(other than by reason of acceleration) have been paid in full in cash.
No default described in this paragraph (2) that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice.
(b) The Company may and shall resume payments on and distributions in
respect of the Securities and may acquire them:
(i) in the case of a default described in Section 10.04(a)(1),
upon the date on which the default is cured or waived,
(ii) in the case of a default referred to in Section 10.04(a)(2)
hereof, the earlier of the date on which such default is cured or
waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated
Senior Debt has been accelerated, and
(iii) if this Article otherwise permits the payment, distribution
or acquisition at the time of such payment, distribution or
acquisition.
SECTION 10.05. ACCELERATION OF SECURITIES.
If payment of the Securities is accelerated because of an Event of Default,
the Company shall promptly notify holders of Senior Debt of the acceleration.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
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In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Securities at a time when a Responsible Officer
of the Trustee or such Holder, as applicable, has actual knowledge that such
payment is prohibited by Section 10.04 hereof, such payment shall be held by the
Trustee or such Holder, in trust for the benefit of, and shall be paid forthwith
over and delivered, upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 10, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders or the Company
or any other Person money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
SECTION 10.07. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the Company that would cause a payment of any Obligations with
respect to the Securities to violate this Article, but failure to give such
notice shall not affect the subordination of the Securities to the Senior Debt
as provided in this Article.
SECTION 10.08. SUBROGATION.
After all Senior Debt is paid in full and until the Securities are paid in
full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Securities) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior Debt
that otherwise would have been made to Holders is not, as between the Company
and Holders, a payment by the Company on the Senior Debt.
SECTION 10.09. RELATIVE RIGHTS.
This Article defines the relative rights of Holders and holders of Senior
Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders, the obligation of the
Company, which is absolute and unconditional, to pay principal of, premium, if
any, and interest on the Securities in accordance with their terms;
(b) affect the relative rights of Holders and creditors of the Company
other than rights of Holders of the Securities in relation to holders of Senior
Debt; or
47
(c) prevent the Trustee or any Holder from exercising its available
remedies upon a Default or Event of Default, subject to the rights of holders
and owners of Senior Debt to receive distributions and payments otherwise
payable to Holders.
If the Company fails because of this Article to pay principal of, premium,
if any, or interest on a Security on the due date, the failure is still a
Default or Event of Default.
SECTION 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
SECTION 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative (or of any holder of Senior Debt for which
there is no Representative) or of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to the Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10. In the event that
the Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article 10, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article 10 and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and any Paying Agent may continue to make payments
on the Securities, unless the Trustee shall have received at the Corporate Trust
Office of the Trustee at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Securities to violate this Article or a Responsible Officer
of the Trustee otherwise has actual knowledge of such facts. Only the Company or
a Representative may give the notice, such notice from the Company to be in the
form of an Officers' Certificate. Notwithstanding the provisions of this Article
10 or any other provisions of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would permit the resumption of
48
payments on or distributions in respect of the Securities or the acquisition of
the Securities by the Company unless the Trustee shall have received an
Officers' Certificate or a notice from a Representative to the effect that such
resumption is permitted. Nothing in this Article 10 shall impair the claims of,
or payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights.
SECTION 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Security by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.09 hereof at least 30 days before the expiration of the time to file such
claim, the agent under the Credit Facility (or in the absence of such agent, the
lender thereunder) is hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Securities.
ARTICLE 11
MEETINGS OF HOLDERS
SECTION 11.01. PURPOSES FOR WHICH MEETING MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article 11 to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 11.02. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 11.01, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in such other place as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 12.02, not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 11.01 by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place for such
49
meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (a) of this Section.
SECTION 11.03. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more outstanding Securities of
such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 11.04. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; PROVIDED, HOWEVER, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture (or any Board Resolution or indenture supplemental hereto establishing
a series of Securities hereunder) expressly provides may be given by the Holders
of more or less than a majority in principal amount of the outstanding
Securities of a series, the Persons entitled to vote such percentage in
principal amount of the outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any such adjourned meeting shall be given as provided in Section
11.02(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the outstanding
Securities of such series which shall constitute a quorum.
Except as otherwise provided in Section 6.02 or 9.02 or the last paragraph
of Section 6.01 (or in any Board Resolution or indenture supplemental hereto
establishing a series of Securities hereunder), any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the outstanding Securities of that series;
PROVIDED, HOWEVER, that, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture or any supplemental indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of the
outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the outstanding Securities of such series.
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Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not such
Holders were present or represented at the meeting.
SECTION 11.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.05 and the appointment of any proxy shall be proved in the manner specified in
Section 1.05. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 1.05 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 11.02(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote at least a majority in principal amount
of the outstanding Securities of such series represented at the meeting. At any
meeting each Holder of a Security of such series or proxy shall be entitled to
one vote for each $1,000 principal amount of the outstanding Securities of such
series held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(c) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote at least a majority in principal amount
of the outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 11.06. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the
51
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 11.02
and, if applicable, Section 11.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 11.07. ARTICLE SUBJECT TO OTHER PROVISIONS.
Each provision of this Article 11 (whether or not expressly so stated) is
subject to any other provision of this Indenture (or any Board Resolution or
supplemental indenture establishing a series of Securities hereunder) that
provides that Securities of different series constitute a single class.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
This Indenture is subject to the provisions of the TIA that are required to
be part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 12.02. NOTICES.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air
courier guaranteeing next day delivery, to the other's address:
If to the Company:
The Navigators Group, Inc.
Reckson Executive Park
0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Executive Vice President
and Chief Financial Officer
If to the Trustee:
52
JPMorgan Chase Bank, N.A.
0 Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Worldwide Securities Services
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged or confirmed, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class mail
or by overnight courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA ss. 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency 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.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS OF SECURITIES WITH OTHER HOLDERS OF
SECURITIES.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
53
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4) or Section 4.04) shall comply with the provisions
of TIA ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Securities, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities.
54
SECTION 12.08. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS MAY OTHERWISE BE
REQUIRED BY MANDATORY PROVISIONS OF LAW.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 12.11. SEVERABILITY.
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 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. This Indenture will be effective when each party shall have signed
and delivered (including delivery by facsimile transmission), one or more
counterparts to the other, but it shall not be necessary for both parties to
sign the same counterpart.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
[Signature Page Follows]
55
SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Subordinated Indenture
as of the date first written above.
THE NAVIGATORS GROUP, INC.
By: ____________________________
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
JPMORGAN CHASE BANK, N.A.,
as Trustee
By: ____________________________
Name:
Title:
56
EXHIBIT A-1
(Face of Note)
___% [Series __] Subordinated Note due [___________]
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE,
PURSUANT TO THE PROVISIONS OF THE SUBORDINATED INDENTURE]
CUSIP No: $
------------------- --------------------
THE NAVIGATORS GROUP, INC. promises to pay to ___________ or registered
assigns, the [principal sum of____________________Dollars]* [the principal sum
as set forth in the Schedule of Exchanges of Interests in the Global Note
attached hereto]** on____________. Interest Payment Dates: ________. Record
Dates: ________.
THE NAVIGATORS GROUP, INC.
By: __________________________
Name:
Title:
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Subordinated Indenture.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By: _____________________________
Authorized Officer
* Insert in certificated Securities
** Insert in Global Securities
57
(Back of Note)
___% [Series __] Subordinated Note due [___________]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. INTEREST. The Navigators Group, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate of __% per annum from [___________] until maturity. The Company will pay
interest [semiannually] [quarterly] on _________ and _________ of each year
(each an "Interest Payment Date"). Interest on the Notes will accrue from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the date of original issuance
thereof; PROVIDED that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; PROVIDED, FURTHER, that
the first Interest Payment Date shall be _______________. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the ____________ or _____________ next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.14
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium and interest at the office or agency of the Company
maintained for such purpose within or without the State of New York; PROVIDED
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest and premium on, all Global Notes and
all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent at least 15 days prior to the
applicable payment date. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, JPMorgan Chase Bank, N.A., the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company may act in any such capacity.
4. SUBORDINATED INDENTURE. The Company issued the Notes under a
Subordinated Indenture dated as of ______________ (the "Indenture") between the
Company and the Trustee. The terms of the Notes include those stated in the
Indenture and in [a Supplemental Indenture] [resolutions of [the ________
Committee of] the Company's Board of Directors] dated, and those terms made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S.C. xx.xx. 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such
58
terms. The Notes are general obligations of the Company. "Notes" means this Note
and all other Notes of the series of which this Note is a part. The Notes are
"Securities" within the meaning of the Indenture, and references in the
Indenture to "Securities" (including terms such as "Global Securities") include
the Notes (and any "Global Notes" as used herein).
5. OPTIONAL REDEMPTION.
[(a)] The Notes will not be redeemable at the Company's option prior to
__________. The Notes may be redeemed, in whole or in part, at the option of the
Company on or after ____________, at the redemption prices specified below
(expressed as percentages of the principal amount thereof), in each case,
together with accrued and unpaid interest, hereon to the date of redemption,
upon not less than 30 nor more than 60 days' notice, if redeemed during the
twelve-month period beginning on ____________ of the years indicated below:
YEAR REDEMPTION PRICE
---- ----------------
[(b) Notwithstanding the foregoing, prior to__________, the Company may, on
any one or more occasions, use the net proceeds of one or more offerings of its
capital stock to redeem up to ___% of the aggregate principal amount of all
Notes that had been issued under the Indenture up to the time of redemption at a
redemption price of __ % of the principal amount of the Notes to be redeemed,
plus accrued and unpaid interest, to the date of redemption; PROVIDED that,
after any such redemption, the aggregate principal amount of the Notes
outstanding (excluding Notes held by the Company and its Subsidiaries) must
equal at least __ % of the principal amount of the Notes that had been issued
under the Indenture up to the time of redemption; and PROVIDED, FURTHER, that
any such redemption shall occur within 90 days of the date of closing of such
offering of capital stock of the Company.]
6. MANDATORY REDEMPTION. [The Company shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes.] or
[Describe mandatory redemption or sinking fund provisions.]
7. NOTICE OF REDEMPTION. Notice of Redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of __________. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not transfer or exchange any Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, it
59
need not transfer or exchange any Note for a period of 15 days before the
mailing of a notice of redemption.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes, except as provided in the Indenture.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of a majority in principal amount of the then outstanding Notes and
other series of Securities affected (treating the Notes and such other series as
a single class), and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and other series of
Securities affected (treating the Notes and such other series as a single
class). Without the consent of any Holder of a Note, the Indenture or the Notes
may be amended or supplemented to cure any ambiguity, defect or inconsistency,
to provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
the Notes in case of a merger, consolidation or certain other events, to make
any change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect in any material respect the
interests under the Indenture of any such Holder, or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA.
11. DEFAULTS AND REMEDIES. Each of the following constitutes an Event of
Default: (i) default by the Company in the payment of interest on the Notes when
the same becomes due and payable and default continues for a period of 30 days;
(ii) default by the Company in the payment of the principal of or premium, if
any, on the Notes when the same becomes due and payable at maturity, upon
redemption or otherwise; (iii) failure by the Company to comply with Section
5.01 of the Indenture; (iv) failure by the Company for 60 days after notice to
comply with any of its other agreements in the Indenture or the Notes; and (v)
certain events of bankruptcy or insolvency with respect to the Company. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes and other series of
Securities affected (treating the Notes and such other series as a single class)
may declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, all outstanding Notes will
become due and payable without further action or notice. Holders of the Notes
may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes and other series of Securities affected (treating the
Notes and such other series as a single class) may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes and other series of
Securities affected (treating the Notes and such other series as a single class)
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of principal, interest or premium on the Notes. The Company is required
60
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
12. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
13. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance of the
Notes.
14. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of an authorized officer of the Trustee or an authenticating
agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties); JT TEN (= joint tenants with right of survivorship
and not as tenants in common); CUST (= Custodian); and U/G/M/A (= Uniform Gifts
to Minors Act).
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
17. SUBORDINATION. The Company and the Holders, by accepting the Notes,
agree that payment of the principal of, premium, if any, and interest on the
Notes is subordinated, to the extent and in the manner provided in the
Indenture, to the right of payment in full of all present and future Senior
Debt, and that the subordination provisions in the Indenture are for the benefit
of the holders of Senior Debt. Each Holder of a Note, by the Holder's acceptance
thereof authorizes and directs the Trustee on the Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in Article 10 of the Indenture, and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
The Navigators Group, Inc.
Reckson Executive Park
0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
61
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Senior Vice President,
Financial Compliance Officer and Secretary
62
ASSIGNMENT FORM
(To assign this Note, fill in the form below)
(I) or (we) assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated: ______________
-----------------------
Signature
-----------------------
Signature Guaranteed
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
63
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a certificated Note, or exchanges of a part of
another Global Note or certificated Note for an interest in this Global Note,
have been made:
Principal Amount of this
Amount of decrease in Amount of increase in Global Note following Signature of authorized
Principal Amount of this Principal Amount of this such decrease (or officer of Trustee or
Date of Exchange Global Note Global Note increase) Note Custodian
---------------------- -------------------------- -------------------------- ------------------------- -------------------------
64
