EXHIBIT 4.3
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XXXXXXXXX, XXXXXX & XXXXXXXX, INC., Company
and
THE CHASE MANHATTAN BANK, Trustee
SUBORDINATED INDENTURE
Dated as of November [ ], 1997
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TABLE OF CONTENTS
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PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................................1
SECTION 1.02. Other Definitions............................................7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act............7
SECTION 1.04. Rules of Construction........................................8
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating..............................................8
SECTION 2.02. Execution and Authentication.................................9
SECTION 2.03. Amount Unlimited; Issuable in Series........................10
SECTION 2.04. Denomination and Date of Securities; Payments of Interest...13
SECTION 2.05. Registrar and Paying Agent..................................14
SECTION 2.06. Paying Agent to Hold Money in Trust.........................15
SECTION 2.07. Transfer and Exchange.......................................15
SECTION 2.08. Replacement Securities......................................19
SECTION 2.09. Outstanding Securities......................................19
SECTION 2.10. Temporary Securities........................................20
SECTION 2.11. Cancellation................................................20
SECTION 2.12. CUSIP Numbers...............................................21
SECTION 2.13. Defaulted Interest..........................................21
SECTION 2.14. Series May Include Tranches.................................21
SECTION 2.15. Computation of Interest.....................................22
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article....................................22
SECTION 3.02. Notice of Redemption; Partial Redemptions...................22
SECTION 3.03. Payment of Securities Called for Redemption.................24
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption..................................25
SECTION 3.05. Mandatory and Optional Sinking Funds........................25
PAGE
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.......................................28
SECTION 4.02. Maintenance of Office or Agency.............................29
SECTION 4.03. Certificate to Trustee......................................30
SECTION 4.04. Reports by the Company......................................30
SECTION 4.05. Calculation of Original Issue Discount......................30
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.................................31
SECTION 5.02. Successor Substituted.......................................31
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...........................................32
SECTION 6.02. Acceleration................................................33
SECTION 6.03. Other Remedies..............................................36
SECTION 6.04. Waiver of Past Defaults.....................................36
SECTION 6.05. Control by Majority.........................................36
SECTION 6.06. Limitation on Suits.........................................37
SECTION 6.07. Rights of Holders to Receive Payment........................37
SECTION 6.08. Collection Suit by Trustee..................................37
SECTION 6.09. Trustee May File Proofs of Claim............................38
SECTION 6.10. Application of Proceeds.....................................38
SECTION 6.11. Restoration of Rights and Remedies..........................39
SECTION 6.12. Undertaking for Costs.......................................39
SECTION 6.13. Rights and Remedies Cumulative..............................40
SECTION 6.14. Delay or Omission Not Waiver................................40
ARTICLE 7
TRUSTEE
SECTION 7.01. General.....................................................40
SECTION 7.02. Certain Rights of Trustee...................................41
SECTION 7.03. Individual Rights of Trustee................................42
SECTION 7.04. Trustee's Disclaimer........................................43
SECTION 7.05. Notice of Default...........................................43
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PAGE
SECTION 7.06. Reports by Trustee to Holders...............................43
SECTION 7.07. Compensation and Indemnity..................................44
SECTION 7.08. Replacement of Trustee......................................45
SECTION 7.09. Successor Trustee by Merger, Etc............................46
SECTION 7.10. Eligibility.................................................46
SECTION 7.11. Money Held in Trust.........................................46
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment.......................46
SECTION 8.02. Defeasance..................................................48
SECTION 8.03. Covenant Defeasance.........................................49
SECTION 8.04. Application of Trust Money..................................50
SECTION 8.05. Repayment to Company........................................50
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders..................................51
SECTION 9.02. With Consent of Holders.....................................51
SECTION 9.03. Revocation and Effect of Consent............................53
SECTION 9.04. Notation on or Exchange of Securities.......................53
SECTION 9.05. Trustee to Sign Amendments, Etc.............................54
SECTION 9.06. Conformity with Trust Indenture Act.........................54
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinated to Senior Indebtedness.............54
SECTION 10.02. No Payment on Securities in Certain Circumstances..........55
SECTION 10.03. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation
or Reorganization of Company.............................57
SECTION 10.04. Securityholders to Be Subrogated to Rights of Senior
Indebtedness.............................................58
SECTION 10.05. Obligations of the Company Unconditional...................59
SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice........................................59
SECTION 10.07. Application by Trustee of Assets Deposited with It.........60
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PAGE
SECTION 10.08. Subordination Rights Not Impaired by Acts or
Omissions of the Company, the Trustee or
Holders of Senior Indebtedness...........................60
SECTION 10.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities..............................61
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness...............62
SECTION 10.11. Article Not to Prevent Events of Default..................62
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.............................................62
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939................................62
SECTION 11.02. Notices....................................................62
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.........64
SECTION 11.04. Statements Required in Certificate or Opinion..............64
SECTION 11.05. Evidence of Ownership......................................64
SECTION 11.06. Rules by Trustee, Paying Agent or Registrar................65
SECTION 11.07. Payment Date Other than a Business Day.....................65
SECTION 11.08. Governing Law..............................................66
SECTION 11.09. No Adverse Interpretation of Other Agreements..............66
SECTION 11.10. Successors.................................................66
SECTION 11.11. Duplicate Originals........................................66
SECTION 11.12. Separability...............................................66
SECTION 11.13. Table of Contents, Headings, Etc...........................66
SECTION 11.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability.................66
SECTION 11.15. Judgment Currency..........................................67
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SUBORDINATED INDENTURE, dated as of [ ], 1997, between Xxxxxxxxx,
Xxxxxx & Xxxxxxxx, Inc., a Delaware corporation, as the Company, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "SECURITIES") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration of the Securities, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Company and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"AGENT" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"AUTHORIZED NEWSPAPER" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial
Times (London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days
in each calendar week and of general circulation in The City of New York or
London, as applicable. If it shall be impractical in the opinion of the
Trustee to make any
publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"BOARD RESOLUTION" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that is not
a day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any of the cities, if more than one)
unless otherwise specified, in which amounts are payable, as specified in the
form of such Security.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding
or issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"COMPANY" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 000 Xxxx 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration.
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"DEFAULT" means any Event of Default as defined in Section 6.01 and
any event that is, or after notice or passage of time or both would be, an
Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Company pursuant to Section 2.03
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or
include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "DEPOSITARY" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"DESIGNATED SENIOR INDEBTEDNESS" means any class of Senior
Indebtedness the aggregate principal amount outstanding of which exceeds [$50
million] and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior Indebtedness
arises as "DESIGNATED SENIOR INDEBTEDNESS."
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of any computation required or permitted
hereunder.
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"INDENTURE" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections
2.01 and 2.03.
"NON-U.S. PERSON" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"OFFICER" means, with respect to the Company, the chairman of the
board of directors, the president, the executive vice president, any senior
vice president, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
3
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president, the
executive vice president or any senior vice president and (ii) by the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 11.04 and delivered to the Trustee. Each
such certificate shall comply with Section 314 of the Trust Indenture Act and
include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 11.04.
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the
Trustee and complying with Section 11.04. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 11.04, if and to the extent required thereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof pursuant to Section
6.02.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"PRINCIPAL" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the
Security.
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"REGISTERED GLOBAL SECURITY" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.02, and bearing the legend prescribed in
Section 2.02 .
"REGISTERED SECURITY" means any Security registered on the Security
Register (as defined in Section 2.05).
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer within the Corporate Trust Office including any Vice President,
Managing Director, Assistant Vice President, Secretary, Assistant Secretary or
Assistant Treasurer of any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with
the particular subject.
"SECURITIES" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, (i) for money borrowed by the
Company, (ii) for money borrowed by, or obligations of, others and either
assumed or guaranteed, directly or indirectly, by the Company, (iii) in
respect of letters of credit and acceptances issued or made by banks, or (iv)
constituting purchase money indebtedness, or indebtedness secured by property
included in the property, plant and equipment accounts of the Company at the
time of the acquisition of such property by the Company, for the payment of
which the Company is directly liable, and (b) all deferrals, renewals,
extensions and refunding of, and amendments, modifications and supplements to,
any such indebtedness. As used in the preceding sentence, the term "PURCHASE
MONEY INDEBTEDNESS" means indebtedness evidenced by a note, debenture, bond or
other instrument (whether or not secured by any lien or other security
interest) issued or assumed as all or a part of the consideration for the
acquisition of property, whether by purchase, merger, consolidation or
otherwise, unless by its terms such indebtedness is subordinated to other
indebtedness of the Company. Notwithstanding anything to the contrary in this
Indenture or the Securities, Senior Indebtedness shall not include, (i) any
indebtedness of the Company which, by its terms or the terms of the instrument
creating or evidencing it, is
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subordinate in right of payment to or pari passu with the Securities or (ii)
any indebtedness of the Company to a Subsidiary of the Company.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"TRUSTEE" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the provisions
of Article 7 and thereafter means such successor.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"UNITED STATES BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"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 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, 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.
"VOTING STOCK" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
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"YIELD TO MATURITY" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series
are issuable from time to time, on a Security of such series, calculated at
the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or
on such Security, and calculated in accordance with the constant interest
method or such other accepted financial practice as is specified in the terms
of such Security.
SECTION 1.02. Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
TERM SECTION
Authenticating Agent 2.2
Cash Transaction 7.3
DLJSC 6.1
Dollars 4.2
Events of Default 6.1
Judgment Currency 11.15
Mandatory sinking fund payment 3.5
Optional sinking fund payment 3.5
Paying Agent 2.5
Payment Blockage Period 10.2(b)
Record Date 2.4
Registrar 2.5
Required Currency 11.15
Security Register 2.5
Self-liquidating paper 7.3
Sinking fund payment date 3.5
Tranche 2.14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
The following terms used in this Indenture that are defined by the Trust
Indenture Act have the following meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder or a Securityholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
7
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the
plural include the singular;
(iii) "HEREIN," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section
or other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions,
8
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law, or with any rules
of any securities exchange or usage, all as may be determined by the officers
executing such Securities as evidenced by their execution of the Securities.
Unless otherwise so established, Unregistered Securities shall have coupons
attached.
SECTION 2.02. Execution and Authentication. The chairman of the board
of directors, the president, the executive vice president or any senior vice
president and the treasurer or any assistant treasurer or the secretary or any
assistant secretary shall execute the Securities (other than coupons) for the
Company by facsimile or manual signature in the name and on behalf of the
Company. The seal of the Company, if any, shall be reproduced on the
Securities. If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "AUTHENTICATING AGENT") to authenticate Securities
(other than coupons). The 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 Authenticating
Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having
attached thereto appropriate coupons, if any, executed by the Company to the
Trustee for authentication together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and make
available for delivery such Securities to or upon the written order of the
Company. In authenticating any Securities of a series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and shall be fully protected in relying upon, unless and until
such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the
forms and terms of the Securities of that series were established;
9
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of
the Securities of such series have been, or will be when established
in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the form
or forms and terms of the Securities of such series have been, or
will be when established in accordance with such procedures as shall
be referred to therein, established in compliance with this Indenture
and that the supplemental indenture, to the extent applicable, and
Securities have been duly authorized and, if executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof on the date
of such opinion, would be entitled to the benefits of the Indenture
and would be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other
matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and
the Trustee shall authenticate and make available for delivery one or more
Registered Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities
of such series issued in such form and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by
the Trustee to such Depositary or its custodian or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
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The Securities may be issued in one or more series and each such
series shall rank junior in right of payment, to the extent provided herein,
to all Senior Indebtedness. There shall be established in or pursuant to a
Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series (subject to the last sentence of
this Section 2.03),
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this
Indenture and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance
of the Securities of that series (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for,
or in lieu of, or upon redemption of, other Securities of the series
pursuant hereto);
(3) the date or dates on which the Principal of the Securities of
the series is payable (which date or dates may be fixed or
extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, on which such
interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to
whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(5) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for exchange, notices, demands to or upon the Company in
respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods
within which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
11
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods
within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, 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 the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of
the Principal of or interest on the Securities of the series shall be
payable or if the amount of payments of Principal of and/or interest
on the Securities of the series may be determined with reference to
an index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(11) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the
currency of the United States, the manner in which any such currency
shall be valued against other currencies in which any other
Securities shall be payable;
(12) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S.
persons in respect of any tax, assessment or governmental charge
withheld or
12
deducted and, if so, whether the Company will have the option to
redeem such Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to
the Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all
Securities of the series), which provisions may be in addition to, in
substitution for, or in modification of (or any combination of the
foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to the
Securities of the series; and
(19) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and may be issued from time to time, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution or
in any such indenture supplemental hereto and any forms and terms of
Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or
13
Unregistered Securities in denominations established as contemplated by
Section 2.03 or, if not so established with respect to Securities of any
series, in denominations of $1,000 and any integral multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers
of the Company executing the same may determine, as evidenced by their
execution thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest and shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Company shall default in the payment of
the interest due on such interest payment date for such series, in which case
the provisions of Section 2.13 shall apply. The term "RECORD DATE" as used
with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.03, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration, regis
tration of transfer or exchange (the "REGISTRAR") and an office or agency
where Securities may be presented for payment (the "PAYING AGENT"), which
shall be in the Borough of Manhattan, The City of New York. The Company shall
cause the Registrar to keep a register of the Registered Securities and of
their registration, transfer and exchange (the "SECURITY REGISTER"). The
Company may have one or more additional Paying Agents or transfer agents with
respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such. The Company may remove any Agent upon written notice to such
Agent and the Trustee; provided that no such removal shall become effective
until (i) the
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acceptance of an appointment by a successor Agent to such Agent as evidenced
by an appropriate agency agreement entered into by the Company and such
successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or
any affiliate of the Company may act as Paying Agent or Registrar; provided
that neither the Company nor an affiliate of the Company shall act as Paying
Agent in connection with the defeasance of the Securities or the discharge of
this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Authenticating Agent. If, at any time, the Trustee is not the Registrar,
the Registrar shall make available to the Trustee ten days prior to each
interest payment date and at such other times as the Trustee may reasonably
request the names and addresses of the Holders as they appear in the Security
Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest
on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of Principal of and interest on such Securities and shall
promptly notify the Trustee in writing of any default by the Company in making
any such payment. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and account for any funds disbursed, and
the Trustee may at any time during the continuance of any payment default,
upon written request to a Paying Agent, require such Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the money so
paid over to the Trustee. If the Company or any affiliate of the Company acts
as Paying Agent, it will, on or before each due date of any Principal of or
interest on any Securities, segregate and hold in a separate trust fund for
the benefit of the Holders thereof a sum of money sufficient to pay such
Principal or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its action or failure to act as
required by this Section.
SECTION 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
15
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.05 and upon payment, if the Company shall so
require, of the charges hereinafter provided. If the Securities of any series
are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.02, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than
one authorized denomination, except as otherwise established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an
equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 4.02, with, in the case
of Unregistered Securities that have coupons attached, all unmatured coupons
and all matured coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. Registered
Securities of any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled
to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
16
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary
eligible under applicable law with respect to such Registered Global
Securities. If a successor Depositary eligible under applicable law for such
Registered Global Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company will execute, and the Trustee, upon receipt of the Company's order
for the authentication and delivery of definitive Registered Securities of
such series and tenor, will authenticate and make available for delivery
Registered Securities of such series and tenor, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of such Registered Global Securities, in exchange for such Registered Global
Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of
definitive Registered Securities of such series and tenor, will authenticate
and make available for delivery, Registered Securities of such series and
tenor in any authorized denominations, in an aggregate principal amount equal
to the principal amount of such Registered Global Securities, in exchange for
such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
17
If established by the Company pursuant to Section 2.03 with respect
to any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and
in such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the
Trustee in writing. The Trustee or such agent shall deliver such Securities to
or as directed in writing by the Persons in whose names such Securities are so
registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws. The Trustee and
any such agent shall be entitled to conclusively rely on an Officers'
Certificate or an Opinion of Counsel in determining such result.
18
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to
register the transfer of or exchange any Security selected for redemption in
whole or in part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims
that its Security of any series has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
and the expenses of the Trustee (including without limitation attorneys' fees
and expenses) in replacing a Security. In case any such mutilated, defaced,
lost, destroyed or wrongfully taken Security has become or is about to become
due and payable, the Company in its discretion may pay such Security instead
of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to
be
19
redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or
one of its affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer
of the Trustee has received written notice to be so owned shall be so
disregarded. Any Securities so owned which are pledged by the Company, or by
any affiliate of the Company, as security for loans or other obligations,
otherwise than to another such affiliate of the Company, shall be deemed to be
outstanding, if the pledgee is entitled pursuant to the terms of its pledge
agreement and is free to exercise in its discretion the right to vote such
securities, uncontrolled by the Company or by any such affiliate.
SECTION 2.10. Temporary Securities. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary Securities
of any series shall be substantially in the form of definitive Securities of
such series but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of any series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Securities
of such series and tenor and authorized denominations. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 2.11. Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated
20
hereunder which the Company has not issued and sold. The Registrar, any
transfer agent and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange or payment. The Trustee
shall cancel all Securities surrendered for transfer, exchange, payment or
cancellation and shall deliver such canceled Securities to the Company. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
SECTION 2.13. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.03) to the Persons who are Holders on a subsequent
special record date, which shall mean the 15th day next preceding the date
fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before such special record date,
the Company shall mail to each Holder and to the Trustee a notice that states
the special record date, the payment date and the amount of defaulted interest
to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and
public offering prices, but all the Securities within each such tranche shall
have identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to
Sections 2.02 (other than the fourth paragraph thereof) through 2.04, 2.07,
2.08, 2.10, 3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and
9.02, if any series of Securities includes more than one tranche, all
provisions of such sections applicable to any series of Securities shall be
deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided
with respect to such series or tranche pursuant to Section 2.03. In
particular, and without limiting the scope of the next preceding sentence, any
of the provisions of such sections which provide for or permit action to be
taken with respect to a series of Securities shall also be deemed to provide
for and permit
21
such action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
SECTION 2.15. Computation of Interest. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 3
REDEMPTION
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 2.03 for Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Registered Securities of such series at their last
addresses as they shall appear upon the Security Register of the Company.
Notice of redemption to the Holders of Unregistered Securities of any series
to be redeemed as a whole or in part, who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act,
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption, to such Holders at such addresses as were so furnished
to the Trustee (and, in the case of any such notice given by the Company, the
Trustee shall make such information available to the Company for such
purpose). Notice of redemption to all other Holders of Unregistered Securities
of any series to be redeemed as a whole or in part shall be published in an
Authorized Newspaper in The City of New York and in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 days nor more than 60 days prior to
the date fixed for redemption. Any notice which is mailed or published in the
manner herein provided shall be conclusively presumed to have
22
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the
date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with coupons attached thereto, of
all coupons appertaining thereto maturing after the date fixed for redemption,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series and tenor in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or,
if the Company is acting as its own Paying Agent, set aside, segregate and
hold in trust as provided in Section 2.06) an amount of money sufficient to
redeem on the redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued interest
to the date fixed for redemption. If all of the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 10
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.02
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of
23
such Securities to be redeemed. In case of a redemption at the election of the
Company prior to the expiration of any restriction on such redemption, the
Company shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers' Certificate
stating that such redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to such
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured coupons, if any,
appertaining thereto shall be void and, except as provided in Sections 7.11
and 8.04, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.04 and 2.13 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of such series and tenor
(with any unmatured coupons attached), of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in a written statement signed by an Officer of the Company
and delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially
by, and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company.
SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "OPTIONAL SINKING FUND
PAYMENT." The date on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and
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delivered to the Trustee for cancellation pursuant to Section 2.11, (b)
receive credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Company through any
optional sinking fund payment. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or delivery of
Securities therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such
sixtieth day, to deliver such Officer's Certificate and Securities specified
in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date 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 series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the
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sinking fund redemption price thereof together with accrued interest thereon
to the date fixed for redemption. If such amount shall be $50,000 (or such
lesser sum) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $50,000 (or such lesser sum) is
available. 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 absorb said cash, as nearly as may be, and
shall (if requested in writing by the Company) inform the Company of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities shall be excluded from eligibility for redemption under
this Section if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least 60 days prior to
the sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in
part at the option of the Company. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall
be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities of 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 except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such series
27
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 deemed to have been collected under
Article 6 and held for the payment of all such Securities. In case such Event
of Default shall have been waived as provided in Section 6.04 or the Default
cured on or before the sixtieth day preceding the sinking fund payment date in
any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities
of any series to the contrary, if the Company and a Holder of any Registered
Security so agree or if expressly provided pursuant to Section 2.03, payments
of interest on, and any portion of the Principal of, such Holder's Registered
Security (other than interest payable at maturity or on any redemption or
repayment date or the final payment of Principal on such Security) shall be
made by the Paying Agent, upon receipt from the Company of immediately
available funds by 11:00 a.m., New York City time (or such other time as may
be agreed to between the Company and the Paying Agent), directly to the Holder
of such Security (by Federal funds wire transfer or otherwise) if the Holder
has delivered written instructions to the
28
Trustee 15 days prior to such payment date requesting that such payment will
be so made and designating the bank account to which such payments shall be so
made and in the case of payments of Principal surrenders the same to the
Trustee in exchange for a Security or Securities aggregating the same
principal amount as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the last instruction
delivered by the Holder pursuant to this Section 4.01 unless a new instruction
is delivered 15 days prior to a payment date. The Company will indemnify and
hold each of the Trustee and any Paying Agent harmless against any loss,
liability or expense (including attorneys' fees) resulting from any act or
omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such
agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 11.02.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency
is required to be maintained under the rules of any stock exchange on which
the Securities of any series are listed) where the Unregistered Securities, if
any, of each series and coupons, if any, appertaining thereto may be presented
for payment. No payment on any Unregistered Security or coupon will be made
upon presentation of such Unregistered Security or coupon at an agency of the
Company within the United States nor will any payment be made by transfer to
an account in, or by mail to an address in, the United States unless, pursuant
to applicable United States laws and regulations then in effect, such payment
can be made without adverse tax consequences to the Company. Notwithstanding
the foregoing, if full payment in United States Dollars ("DOLLARS") at each
agency
29
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.03. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end
of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 11.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.04. Reports by the Company. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
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 the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.05. Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on outstanding Securities as of the
end of such year.
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ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or
merger with or into a Subsidiary or a sale, conveyance, transfer, lease or
other disposition to a Subsidiary) or permit any Person to merge with or into
the Company unless:
(i) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or
into which the Company is merged or that acquired or leased such
property and assets of the Company shall be a corporation organized
and validly existing under the laws of the United States of America
or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under
this Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or
transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to
such transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in
accordance with its terms, subject to customary exceptions; and
(ii) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to
such transaction, no Default shall have occurred and be continuing
and an Opinion of Counsel as to the matters set forth in Section
5.01(i).
SECTION 5.02. Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all
or substantially all of the property and assets of the Company in accordance
with Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein.
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ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "EVENT OF DEFAULT" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including
as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default
or breach continues for a period of 60 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of 25% or more in aggregate principal amount of the Securities of
all series affected thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("DLJSC") with respect to the Company or DLJSC or their respective debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or DLJSC or for any substantial part of the
property and assets of the Company or DLJSC, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or DLJSC
under any bankruptcy, insolvency or other similar law now or hereafter in
effect;
(e) the Company or DLJSC (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or DLJSC or for all or substantially all of the
property and assets of the Company or DLJSC or (C) effects any general
assignment for the benefit of creditors;
32
(f) an event of default, as defined in any one or more indentures or
instruments evidencing or under which the Company has at the date of this
Indenture or shall hereafter have outstanding an aggregate of at least
$25,000,000 aggregate principal amount of indebtedness for borrowed money,
shall happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, and such
acceleration shall not be rescinded or annulled within ten days after notice
thereof shall have been given to the Company by the Trustee (if such event be
known to it), or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Securities at the time outstanding;
provided that if such event of default under such indentures or instruments
shall be remedied or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the
Securityholders, and provided further, however, that the Trustee shall not be
charged with knowledge of any such default unless written notice thereof shall
have been given to the Trustee by the Company, by the holder or an agent of
the holder of any such indebtedness, by the trustee then acting under any
indenture or other instrument under which such default shall have occurred, or
by the Holders of not less than 25% in the aggregate principal amount of the
Securities at the time outstanding;
(g) failure by the Company to make any payment at maturity, including
any applicable grace period, in respect of at least $25,000,000 aggregate
principal amount of indebtedness for borrowed money and such failure shall
have continued for a period of ten days after notice thereof shall have been
given to the Company by the Trustee (if such event be known to a responsible
Officer of the Trustee), or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the Securities at the time
outstanding; provided that if such failure shall be remedied or cured by the
Company or waived by the holders of such indebtedness, then the Event of
Default under this Indenture by reason thereof shall be deemed likewise to
have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the Securityholders; or
(h) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.01 with respect to the Securities of any
series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the Principal of which shall
have already
33
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series
then outstanding hereunder (each such series treated as a separate class) by
notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(b) If an Event of Default described in clauses (c) or (h) of
Section 6.01 with respect to the Securities of one or more but not all series
then outstanding, occurs and is continuing, then, and in each and every such
case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount (or, if the Securities of any such
series are Original Issue Discount Securities, the amount thereof accelerable
under this Section) of the Securities of all such affected series then
outstanding hereunder (treated as a single class) by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the
entire principal amount (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of
all Securities of all such affected series, and the interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
(c) If an Event of Default described in clauses (d) or (e) of
Section 6.01 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms thereof established pursuant to
Section 2.03) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent
permitted by applicable law.
(d) If an Event of Default described in clauses (f) or (g) of
Section 6.01 or in clauses (c) or (h) of Section 6.01 with respect to the
Securities of all series then outstanding, occurs and is continuing, then, and
in each and every such case, either the Trustee or the Holders of not less
than 25% in aggregate principal amount (or, if the Securities of any
outstanding series are Original Issue Discount Securities, the amount thereof
accelerable under this Section) of all Securities of any series then
outstanding hereunder except for any series of Securities the Principal of
which shall have already become due and payable (treated as a single
34
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of any series
then outstanding, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal amount (or, if the Securities are Original
Issue Discount Securities, such portion of the Principal as may be specified
in the terms thereof established pursuant to Section 2.03) of the Securities
of any series (or of all the Securities, as the case may be) shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all the Securities of each such
series (or of all the Securities, as the case may be) and the Principal of any
and all Securities of each such series (or of all the Securities, as the case
may be) which shall have become due otherwise than by acceleration (with
interest upon such Principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of each such
series to the date of such payment or deposit) and such amount as shall be
sufficient to cover all amounts owing the Trustee under Section 7.07, and if
any and all Events of Default under the Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then
and in every such case the Holders of a majority in aggregate principal amount
of all the then outstanding Securities of all such series that have been
accelerated (voting as a single class), by written notice to the Company and
to the Trustee, may waive all defaults with respect to all such series (or
with respect to all the Securities, as the case may be) and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
Principal thereof as shall be due and
35
payable as a result of such acceleration, and payment of such portion of the
Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of 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.
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.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the
payment of Principal of or interest on any Security as specified in clauses
(a) or (b) of Section 6.01 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default with respect to the
Securities of such series arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(v), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further,
that the Trustee may take any other action it deems proper that is
36
not inconsistent with any directions received from Holders of Securities
pursuant to this Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of
such series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security
to receive payment of Principal of or interest, if any, on such Holder's
Security on or after the respective due dates expressed on such Security, 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 with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the
37
Company for the whole amount (or such portion thereof as specified in the
terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on,
together with interest on overdue Principal of, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest on, the Securities of such series, in each case at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) specified in
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may 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
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
to it under Section 7.07. Nothing herein contained shall be deemed to empower
the Trustee to authorize or consent to, or accept or adopt on behalf of any
Holder, any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of
Principal or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07 applicable to the Securities of such series in respect of which moneys
have been collected;
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SECOND: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series
in default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for Principal and interest, with
interest upon the overdue Principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the
payment of such Principal and interest or Yield to Maturity, without
preference or priority of Principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate of
such Principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 6.11. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored to their former
positions hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.12. 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 Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may
39
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.12 does not apply to a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the outstanding Securities of such series or to the Trustee.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 6 or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7. The Trustee,
prior to the occurrence of an Event of Default of which a Responsible Officer
of the Trustee has actual knowledge and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee. If an Event of Default to the actual knowledge of a Responsible
Officer of the Trustee has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement or any Supplement and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
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SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any Officers' Certificate,
Opinion of Counsel (or both), resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper person or persons. The Trustee need
not investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion. Subject to Sections 7.01 and 7.02, whenever
in the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to
be taken by it under the provisions of this Indenture upon the faith
thereof;
(iii) the Trustee may act through its attorneys, Agents, custodian
and nominee not regularly in its employ and shall not be responsible
for the misconduct or negligence of any Agent, attorney, custodian
and nominee appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the secretary or an
assistant secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, unless such Holders shall have
offered to
41
the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request, order or direction;
(vi) 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 its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.05 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture;
(vii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in
reliance thereon; and
(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers' Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require indemnity satisfactory to it
against such expenses or liabilities as a condition to proceeding.
(ix) If the Trustee is acting as Paying Agent or Transfer Agent and
Registrar herein the rights and protections afforded the Trustee
under this Article 7 shall also be afforded to such Paying Agent or
Transfer Agent and Registrar.
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 its affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
42
(a) "CASH TRANSACTION" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks
or bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities or for
monies paid over to the Company pursuant to the Indenture.
SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if
any Unregistered Securities of such series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London and (ii) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, unless such Default shall have been cured or waived before the
mailing or publication of such notice; provided, however, that, except in the
case of a Default in the payment of the Principal of or interest on any
Security, the Trustee shall be fully protected in withholding such notice if
the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each September 15, beginning with September 15, 1998, the Trustee shall mail
to each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief
43
report dated as of such September 15, if required by Trust Indenture Act
Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses
shall include the reasonable compensation and expenses of the Trustee's
agents, counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee and its Officers, directors,
employees and Agents for, and hold it and them harmless against, any and all
loss, damage, claim or liability or expense (including legal fees and
expenses) including taxes (other than taxes based on the income of the
Trustee) incurred by it or them without negligence or bad faith on its part
arising out of or in connection with the acceptance or administration of this
Indenture and the Securities or the issuance of the Securities or a series
thereof or the trusts hereunder and the performance of its duties under this
Indenture and the Securities, including the costs and expenses of defending
itself against or investigating any claim or liability and of complying with
any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture
and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or termination
of this Indenture under bankruptcy law or the earlier resignation or removal
of the Trustee. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Securities or coupons, and the Securities are hereby subordinated
to such senior claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 6.01(d) or Section 6.01(e) hereof,
the parties hereto and the Holders by their acceptance of the Securities
hereby agree that such expenses are intended to constitute expenses of
administration under any bankruptcy law.
44
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of
a majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee
becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by
the next succeeding paragraph of this Section 7.08 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any series
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance,
subject to the lien provided for in Section 7.07 and subject to the payment of
any and all amounts then due and owing to the retiring Trustee, (i) the
retiring Trustee shall transfer all property held by it as Trustee in respect
of the Securities of such series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee in respect of the Securities of
such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities
of such series under this Indenture. A successor Trustee shall mail notice of
its succession to each Holder of Securities of such series.
45
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
the preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee in respect of the Securities of such series to all
Holders of Securities of such series. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national
banking association, the resulting, surviving or transferee corporation or
national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein; provided that such successor Trustee shall be otherwise
qualified and eligible under this Article 7.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. 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 and except
for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
46
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities
of such series that have been replaced or Securities of such series
that are paid pursuant to Section 4.01 or Securities of such series
for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section
8.05) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or
a combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay the Principal of and interest on the Securities of such series
to maturity or redemption, as the case may be, and to pay all other
sums payable by it hereunder, and (C) the Company delivers to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each
case stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.07 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in
respect of the Securities of such series shall survive until such Securities
of such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 in respect of the Securities of such
series shall survive. After any such irrevocable deposit, the Trustee upon
written request shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this Indenture with
respect to the Securities of such series except for those surviving
obligations specified above.
47
SECTION 8.02. Defeasance. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have
been satisfied:
(A) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the Principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which
it is bound;
(C) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under
this Section 8.02 and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred or
(y) an Opinion of Counsel to the same effect as the ruling described
in clause (x) above and (2) an Opinion of Counsel to the effect that
the Holders of the Securities of such series have a valid security
interest in the trust funds subject to no prior liens under the UCC;
and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
48
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 of the Securities of such series
have been complied with.
The Company's obligations in Sections 2.02 through 2.12 , 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply
with any specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 8.03, and such omission shall be
deemed not to be an Event of Default under clauses (c) or (h) of Section 6.01,
with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment
of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material
agreement or instrument to which the Company is a party or by which
it is bound;
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series
have a valid security interest in the trust funds subject to no prior
liens under the UCC and (B) such Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to federal income
tax on the same
49
amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.03 of the Securities of
such series have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.05 ,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities of such series; 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 U.S. Government
Obligations deposited pursuant to Section 8.01, 8.02 or 8.03 or the principal
or interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding
Securities.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon
shall be relieved from all liability with respect to such money. The Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them and required to make payments hereunder under this Indenture that
remains unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment may cause to be published at
the expense of the Company once in an Authorized Newspaper in The City of New
York and once in an Authorized Newspaper in London or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
Register) notice that such money remains unclaimed and that after a date
specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Company. After payment to the Company, Holders entitled
to such money must look to the Company for payment as general creditors unless
an applicable law designates another Person, and all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
50
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture
Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted
by Section 2.03;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose; or
(7) to make any change that does not materially and adversely affect
the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07, without prior notice to any Holders, the Company and the Trustee may
amend this Indenture and the Securities of any series with the written consent
of the Holders of a majority in principal amount of the outstanding Securities
of all series affected by such amendment (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one
class) by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Securities of such series.
51
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(i) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security, or reduce the Principal thereof or the rate of interest
thereon (including any amount in respect of original issue discount),
or any premium payable with respect thereto, or adversely affect the
rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of
such Holder, or reduce the amount of the Principal of an Original
Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 6.02 or the
amount thereof provable in bankruptcy, or change any place of payment
where, or the currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the due date
therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
52
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. 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 supplemental indenture or
waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the Security of the consenting
Holder, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective with respect to any Securities affected thereby on
receipt by the Trustee of written consents from the requisite Holders of
outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be not less than 10 nor more than 60 days prior to the solicitation
of consents) for the purpose of determining the Holders of the Securities of
any series affected entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then, notwithstanding the immediately
preceding paragraph, those Persons who were such Holders at such record date
(or their duly designated proxies) and only those Persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be such Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of
clauses(i) through (iv) of Section 9.02. In case of an amendment or waiver of
the type described in clauses (i) through (iv) of Section 9.02, the amendment
or waiver shall bind each such Holder who has consented to it and every
subsequent Holder of a Security that evidences the same indebtedness as the
Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may
require the Holder thereof to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it
to the Holder and the Trustee may place an appropriate notation on any
Security of such
53
series thereafter authenticated. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to customary exceptions.
Subject to the preceding sentence, the Trustee shall sign such amendment,
supplement or waiver if the same does not adversely affect the rights of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver that affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinated to Senior Indebtedness. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of,
premium, if any, and interest on the Securities is subordinated, to the extent
and in the manner provided in this Article 10, to the right of payment in full
to all present and future Senior Indebtedness, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
The provisions of this Article 10 are for the benefit of the holders
of the Senior Indebtedness from time to time (and their successors and
assigns) and shall be enforceable directly by them and their respective
Representatives directly against the Company, the Trustee and the Holders (and
their successors and assigns). The provisions of this Article 10 shall be a
continuing agreement and shall be irrevocable and shall remain in full force
and effect until payment in the
54
full of the Senior Indebtedness in cash or cash equivalents, and shall
constitute a continuing and irrevocable offer to all Persons who become
holders of, or continue to hold, Senior Indebtedness (whether such Senior
Indebtedness was created or acquired before or after the issuance of the
Securities), each of which holders shall be deemed for the purposes hereof to
have acquired Senior Indebtedness in reliance upon the provisions of this
Article 10. The provision of this Article 10 shall survive the commencement of
any reorganization or other proceedings with respect to the Company or any
other Person and the discharge of any claim in connection with such
reorganization or other proceedings, including, without limitation, the
discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article 10 at any time when the Company or any Holder shall
have failed to comply with any provision of this Article 10 applicable to it,
and the Company and each Holder hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to the remedy
of specific performance hereof in any action brought therefor by the holders
of the Senior Indebtedness and their respective representatives.
SECTION 10.02. No Payment on Securities in Certain Circumstances. (a)
No payment shall be made by or on behalf of the Company on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal
of, premium, if any, or interest on the Securities, or to redeem (or make a
deposit in redemption of), defease (other than payments made by the Trustee
pursuant to Article 8 with respect to a defeasance permitted by this
Indenture, including the subordination provisions herein) or acquire any of
the Securities for cash, property or securities, (i) upon the maturity of the
Designated Senior Indebtedness or any other Senior Indebtedness with an
aggregate principal amount in excess of $1 million by lapse of time,
acceleration or otherwise, unless and until all Principal of, premium, if any,
and interest on such Senior Indebtedness and all other obligations in respect
thereof shall first be paid in full in cash or cash equivalents or such
payment is duly provided for, or unless and until any such maturity by
acceleration has been rescinded or waived or (ii) in the event of default in
payment of any Principal of, premium, if any, or interest on or any other
amount payable in respect of the Designated Senior Indebtedness or any other
Senior Indebtedness with an aggregate principal amount in excess of $1 million
when it becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise, unless and until such payment
default has been cured or waived or has otherwise ceased to exist.
55
(b) Upon the happening of a default (any event that, after notice or
passage of time would be an event of default) or an event of default (any
event that permits the holders of Senior Indebtedness or their representative
or representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the Principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice
of such default or event of default given to the Company and the Trustee by
the holders of a majority of the principal amount outstanding of such
Designated Senior Indebtedness or their representative or at such time as
there is no Designated Senior Indebtedness by the holders of a majority of the
principal amount outstanding of all Senior Indebtedness or their
representative or representatives, or if such default or event of default
results from the acceleration of the Securities, immediately upon such
acceleration, then, unless and until such default or event of default has been
cured or waived or otherwise has ceased to exist, no payment may be made by or
on behalf of the Company with respect to any obligation or claim in respect of
the Securities, including the Principal of, premium, if any, or interest on
the Securities or to redeem (or make a deposit in redemption of), defease or
acquire any of the Securities for cash, property or securities.
Notwithstanding the foregoing, unless the Senior Indebtedness in respect of
which such default or event of default exists has been declared due and
payable in its entirety within 180 days after the date written notice of such
default or event of default is delivered as set forth above or the date of
such acceleration, as the case may be (the "PAYMENT BLOCKAGE PERIOD"), and
such declaration or acceleration has not been rescinded, the Company shall be
required then to pay all sums not paid to the Holders of the Securities during
the Payment Blockage Period due to the foregoing prohibitions and to resume
all other payments as and when due on the Securities. Any number of such
notices may be given; provided, however, that (i) during any 360 consecutive
days, only one Payment Blockage Period shall commence and (ii) any such
default or event of default that existed upon the commencement of a Payment
Blockage Period may not be the basis for the commencement of any other Payment
Blockage Period, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 10.02, any payment or distribution of assets of the Company from
any source whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders
of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the
56
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or to
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any
acceleration under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
SECTION 10.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Company. Upon
any distribution of assets of the Company upon any dissolution, winding up,
total or partial liquidation or reorganization or readjustment of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors, or any
other marshaling of the assets and liabilities of the Company or otherwise:
(a) the holders of all Senior Indebtedness would first be entitled
to receive payment in full in cash or cash equivalents (or have such payment
duly provided for) of the Principal, premium, if any, and interest payable in
respect thereof before the Holders would be entitled to receive any payment on
account of the Principal of, premium, if any, and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities to
which the Holders or the Trustee on behalf of the Holders would be entitled,
except for the subordination provisions of this Article 10, would be paid by
the liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid
or unprovided for or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, for application to the payment of
all Senior Indebtedness remaining unpaid, to the extent necessary to pay or
provide for the payment in full in cash or cash equivalents of all such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
57
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash,
property or securities, shall be received by the Trustee or the Holders on
account of principal of or interest on the Securities before all Senior
Indebtedness is paid in full in cash or cash equivalents (or such payment is
duly provided for), such payment or distribution (subject to the provision of
Section 10.06 and 10.07) shall be held in trust by the Trustee or such Holders
for the benefit of the holders of the Senior Indebtedness, or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full (except as such payment otherwise shall have been provided
for) of all Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of Senior Indebtedness, as promptly as practicable following notice
from the Trustee to the holders of Senior Indebtedness that such prohibited
payment has been received by the Trustee or Holder(s), such holder (or a
representative therefor) notifies the Trustee in writing of the amounts then
due and owing on the Senior Indebtedness, if any, held by such holder and only
the amounts specified in such notices to the Trustee shall be paid to the
holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
SECTION 10.04. Securityholders to Be Subrogated to Rights of Senior
Indebtedness. Subject to the payment in full in cash or cash equivalents of
all Senior Indebtedness (or provision made for its payment), the Holders of
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, in cash or cash equivalents and for the
purpose of such subrogation no such payments or distributions to the holders
of Senior Indebtedness by or on behalf of the Company, or by or on behalf of
the Holders by virtue of this Article 10, which otherwise would have been made
to the Holders shall, as between the Company and the Holders, be deemed to be
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article 10 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of
amounts payable
58
under Senior Indebtedness, then the Holders shall be entitled to receive from
the holders of such Senior Indebtedness any payments or distributions received
by such holders of Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of the Senior Indebtedness in full
in cash or cash equivalents.
SECTION 10.05. Obligations of the Company Unconditional. Nothing
contained in this Article 10 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article 10, of the holders of Senior Indebtedness in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article 10 or elsewhere in
this Indenture or in the Securities, upon any 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 in which such dissolution, winding up, liquidation or
reorganization proceeding are pending, or a certificate 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 Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
Except as otherwise provided in this Section 10.05, in the event of
any inconsistency between the provisions of this Article 10, on the one part,
and any other provision of this Indenture or any provision of the Securities,
on the other part, the provisions of this Article 10 shall govern.
SECTION 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment
to or by the Trustee unless and until a Responsible Officer of the Trustee
shall have
59
received, no later than three Business Days prior to such payment, written
notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled in all respects
conclusively to assume that no such fact exists.
SECTION 10.07. Application by Trustee of Assets Deposited with It.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.01 shall be for the sole benefit
of Securityholders and, to the extent (i) the making of such deposit by the
Company shall not have been in contravention of any term or provision of any
agreement creating or evidencing Senior Indebtedness and (ii) allocated for
the payment of Securities, shall not be subject to the subordination
provisions of this Article 10. Otherwise, any deposit of assets by the Company
with the Trustee or any Paying Agent (whether or not in trust) for the payment
of Principal of or interest on any Securities shall be subject to the
provisions of Sections 10.01, 10.02, 10.03 and 10.04; provided, that, if prior
to the second Business Day preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including
without limitation, the payment of either Principal of or interest on any
Securities) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 10.06, then
the Trustee or such Paying Agent shall have full power and authority to
receive such assets and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date.
SECTION 10.08. Subordination Rights Not Impaired by Acts or Omissions
of the Company, the Trustee or Holders of Senior Indebtedness. No act, or
failure to act, of any holder of the Senior Indebtedness or their respective
representatives (including without limitation, any action referred to in this
Section 10.08), the Company, the Trustee, any Holder or any other Person with
the terms, covenants or the provisions of this Article 10 (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article 10, the
obligations owed by the Company, the Trustee or any Holder to the holders of
the Senior Indebtedness under this Article 10 or the rights of any holder of
Senior Indebtedness under this Article 10.
The Company, the Trustee and each Holder each hereby agrees that the
taking of any of the following actions, with or without notice, by the holders
of the Senior Indebtedness and their respective representatives, will not in
any way affect the provisions of this Article 10: (i) changing the manner,
place or terms of
60
payment or extending the time of payment of, or renewing or altering, any
agreement or instrument creating, evidencing or governing any Senior
Indebtedness, or consenting to any amendment or change of any terms of any
such agreement or instrument, each as amended from time to time; (ii) granting
extensions or renewals of any such agreement or instrument and any other
indulgence with respect thereto, or effecting any release, compromise or
settlement with respect thereto; (iii) releasing any Person liable in any
manner for the payment or collection of any Senior Indebtedness; (iv)
substituting, exchanging or releasing or otherwise disposing of any item of
security at any time securing any Senior Indebtedness, whether or not the
collateral, if any, received upon the exercise of such power shall be of a
character or value the same as or different from the character or value of the
item of security released; (v) exercising or refraining from exercising any
rights or remedies against the Company or any other Person; and (vi) taking
any other action, or refraining from taking any action, that, in the absence
of authority granted hereby, could have the effect of impairing, invalidating
or rendering unenforceable, in whole or in part, or otherwise affecting, any
of the provisions of this Article 10.
SECTION 10.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as
may be necessary or appropriate to effectuate the subordination provisions
contained in this Article 10 and to protect the rights of the Holders pursuant
to this Indenture, and appoints the Trustee his or her attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or any reorganization or similar preceding with respect to the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of the Company) tending towards liquidation of the business
and assets of the Company, the immediate filing of a claim for the unpaid
balance of his or her Securities in the form required in said proceedings and
cause said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the
holders of the Senior Indebtedness or their respective representatives are
hereby authorized to have the right to file and are hereby authorized to file
an appropriate claim for and on behalf of the Holders of said Securities.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness or their respective representatives to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee or
the holders of
61
Senior Indebtedness or their respective representatives to vote in respect of
the claim of any Securityholder in any such proceeding.
SECTION 10.10. Right of Trustee to Hold Senior Indebtedness. The
Trustee shall be entitled to all of the rights set forth in this Article 10 in
respect of any Senior Indebtedness at any time held by it to the same extent
as any other holder of Senior Indebtedness, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
SECTION 10.11. Article 10 Not to Prevent Events of Default. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article 10 shall not be
construed as preventing the occurrence of a Default or an Event of Default
under Section 6.01or in any way prevent the Holders from exercising any right
hereunder other than the right to receive payment on the Securities.
SECTION 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall
in good faith mistakenly pay over or distribute to the Holders of Securities
or the Company or any other person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article 10
or otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 11.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission
is confirmed, in each case addressed as follows:
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if to the Company:
Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
if to the Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Trust Services
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York and at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act at such addresses as were so furnished to the Trustee and to
Holders of Registered Securities by mailing to such Holders at their addresses
as they shall appear on the Security Register. Notice mailed shall be
sufficiently given if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and
each Agent at the same time.
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. Except
as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 11.02, it is duly given, whether
or not the addressee receives it.
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
63
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
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:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in
such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.05. Evidence of Ownership. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of
such
64
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an
Unregistered Security, and the identifying number of such Security and the
date of his holding the same, may be proved by the production of such Security
or by a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person
named in such certificate. Any such certificate may be issued in respect of
one or more Unregistered Securities specified therein. The holding by the
person named in any such certificate of any Unregistered Securities specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(1) another certificate bearing a later date issued in respect of the same
Securities shall be produced or (2) the Security specified in such certificate
shall be produced by some other Person, or (3) the Security specified in such
certificate shall have ceased to be outstanding. Subject to Article 7, the
fact and date of the execution of any such instrument and the amount and
numbers of Securities held by the Person so executing such instrument may also
be proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in any other manner which the Trustee may deem
sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
Principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 11.06. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Payment Date Other than a Business Day. If any date
for payment of Principal or interest on any Security shall not be a Business
Day at any place of payment, then payment of Principal of or interest on such
Security, as
65
the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such
payment for the period from and after such date.
SECTION 11.08. Governing Law. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
SECTION 11.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture
or agreement may not be used to interpret this Indenture.
SECTION 11.10. 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 11.11. Duplicate 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.
SECTION 11.12. Separability. 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 11.13. 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
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 11.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the coupons appertaining thereto
66
by the holders thereof and as part of the consideration for the issue of the
Securities and the coupons appertaining thereto.
SECTION 11.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is
not a Business Day in The City of New York, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
XXXXXXXXX, XXXXXX & XXXXXXXX,
INC., as the Company
By:
--------------------------------
[SEAL] Name:
Title:
Attest:
By:
--------------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Name:
Title:
68
STATE OF ________ )
)
COUNTY OF ________ )
BEFORE ME, the undersigned authority, on this [ ] day of [ ], 1997,
personally appeared Xxxxxxx X. Xxxxxxx, Executive Vice President and Chief
Financial Officer of Xxxxxxxxx, Lufkin & Xxxxxxxx, Inc., a Delaware
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such corporation for the purposes and consideration herein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ],
1997.
(SEAL)
-----------------------------------
NOTARY PUBLIC, STATE OF ________
Print Name:_________________________
Commission Expires:_________________
00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of [ ], 1997,
personally appeared , of The Chase Manhattan Bank, a New York banking
corporation, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same
as the act of such trust for the purposes and consideration herein expressed
and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF [ ],
1997.
(SEAL)
-------------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:___________________________
Commission Expires:___________________
70
